01A02214_r
07-30-2002
James L. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James L. Davis v. United States Postal Service
01A02214
July 30, 2002
.
James L. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02214
Agency No. 1-J-601-0012-99
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Distribution Operations, at the agency's Carol Stream
Processing and Distribution Center facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on February 17,
1999, claiming that he was discriminated against on the bases of race
(Black), color (brown), and age (D.O.B. March 4, 1943) when:
(1) On August 26, 1998, complainant was issued a notice of proposed
removal;
On October 20, 1998, complainant's paycheck was taken without
authorization;
On September 29, 1998, and October 2, 5, 7, 8, and 9, 1998, complainant's
request for Family and Medical Leave Act (FMLA) leave was disapproved
and his PS Form 3971 for 80 hours of annual leave was disapproved; and
On October 27, 1998, complainant received an unacceptable evaluation
rating on his merit.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its decision, the agency concluded that complainant failed to
establish a prima facie case of discrimination on the bases of race,
color and age. Additionally, the agency found that even assuming that
complainant established a prima facie case of discrimination, complainant
failed to rebut the agency's articulated legitimate non-discriminatory
reasons for its actions.
According to the agency, complainant was issued a notice of proposed
removal, described in claim 1, because of discrepancies between the actual
time that complainant was at work, and the time that he reported on PS
Form 1261 as his daily work hours. The removal notice was reduced to a
letter of warning in lieu of a 14-day suspension pursuant to an October
22, 1998 settlement agreement between complainant and the agency.<1>
The settlement agreement states, �This agreement constitutes the full
and final settlement of any/all matters relating to [complainant's]
removal, which became effective on October 10, 1998.� Therefore, the
Commission finds that claim 1 was settled pursuant to the settlement
agreement, and this claim is dismissed for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding claim 2, the agency emphasizes the testimony of the
Supervisor Distribution Operations (SDO), who in his affidavit states
that complainant did not report to work the three or four days prior to
the effective date of his removal; therefore, the SDO did not have the
opportunity to retrieve complainant's beeper and time badge. The SDO
held complainant's paycheck so that he could retrieve the beeper and
time badge when complainant came to obtain his paycheck from the agency.
Furthermore, pursuant to the October 10, 1998 settlement agreement,
complainant was not entitled to a paycheck because according to
the settlement agreement complainant �shall receive no back pay or
compensation as a result of this settlement.�
In response to claim 3, the agency asserts that complainant's FMLA leave
was disapproved because his FMLA forms were incomplete. Additionally,
according to the agency, the annual leave requested by complainant
was for time that he spent �off the clock� as a result of the notice of
proposed removal that he was issued following his falsified time reports.
The SDO determined that complainant was ineligible for annual leave during
the time that he was �off the clock� because pursuant to the settlement
agreement, complainant was not entitled to compensation for that time.
The agency submits that complainant was given an unacceptable evaluation
rating as described in claim 4, because he received disciplinary action
as a result of the falsified time reports, and such conduct is contrary
to the expectations of a supervisor, such as complainant, who is expected
to be a role model, not an abuser of the system.
Even assuming that complainant properly established a prima facie case
of discrimination on the bases of race, color and age, we find that
the agency met its burden of production by articulating legitimate,
nondiscriminatory reasons for its actions. The Commission emphasizes
that if complainant believes that the agency has failed to comply with
the terms of the settlement agreement, complainant shall notify the
EEO Director, in writing, of the alleged noncompliance within 30 days
of when he knew or should have known of the alleged non-compliance.
See 29 C.F.R. � 1614.504(a). Nevertheless, in the instant appeal,
complainant failed to show that the agency's actions were motivated by
prohibited discrimination.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 30, 2002
__________________
Date1The Commission notes that the Manager
Distribution Operations (MDO) testifies in her affidavit that another
employee (White, female) received a notice of proposed removal for
falsified time reports, and also entered into a settlement agreement
reducing her notice of proposed removal to a letter of warning in lieu
of a fourteen (14) day suspension on October 22, 1998.