01a03284
07-12-2000
Levi M. Daniel, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Levi M. Daniel v. United States Postal Service
01A03284
07-12-00
Levi M. Daniel, )
Complainant, )
)
v. )
) Appeal No. 01A03284
William J. Henderson, ) Agency No. 1D-251-0020-98
Postmaster General, ) Hearing No. 170-99-8103X
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).<1> For the reasons set forth below, we AFFIRM
the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against on the bases of his race (Black) and/or in
reprisal for filing a prior EEO complaint when on April 11, 1998, the
agency failed to transfer him to a facility in Beckley, West Virginia.
BACKGROUND
Complainant filed a formal complaint in July 1998. Following an
investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing, but the AJ decided that
a decision without a hearing would be appropriate. After notifying
the parties, on January 6, 2000, the AJ issued a decision finding that
complainant had not been discriminated against. On February 22, 2000,
the agency issued a Notice of Final Action that implemented the decision
of the AJ. It is from this decision that complainant now appeals.
Complainant did not offer any new contentions on appeal.
At the time of his complaint, complainant served as a PS-5, Registry Room
Clerk (Mail-Handler) in Charleston, West Virginia. On October 15, 1997,
complainant requested a transfer from his position to a 204B supervisory
position at the Beckley, West Virginia Post Office. On October 15, 1997,
A-1, Postmaster of the Beckley Post Office, informed complainant that
there were no openings, but that his request would be kept on file.
On February 16, 1998, complainant again wrote A-1 regarding another
position. This request was also denied.
On April 11, 1998, A-1 decided to fill four Distribution/Window Clerk
positions by going to the hiring register and not by granting transfer
requests. He noted that a Memorandum of Understanding (MOU) with the
Union required that one out of every four vacancies (25%) had to be
filled with transfer employees if available. The record at Beckley,
however, was that six of the past fourteen vacancies (43%) were filled
by transferees.<2> Because he had exceeded the standards set forth in
the MOU, A-1 testified that he decided to go to the hiring register in
order to fill his vacancies. A-1 also indicated that he felt that those
who took the postal exam and got on the register deserved an opportunity
for postal employment.
According to A-1, �all new hires from the register are processed and
selected through the district office and neither [he] nor anyone else
in Beckley has any say in that selection process, however, they are
hired according to the score they made on the postal exam.� The four
individuals selected, on April 11, 1998, were B-1 (white), B-2 (white),
B-3 (white), and B-4 (white). A-1 stated that complainant was not
the only person whose transfer request was denied. He noted that the
transfer requests of D-1 (black), D-2 (white), D-3 (white), D-4 (white),
and D-5 (white) were also denied. Finally, A-1 testified that he was
not aware of complainant's previous EEO activity or his race prior to
this complaint.
According to the AJ, complainant failed to establish a prima facie case
of reprisal discrimination. Although he established that he engaged in
prior protected activity, complainant was unable to show that A-1, who
made the decision not to grant his transfer request, was aware of this.
The AJ, in noting that A-1 was the Postmaster in Beckley and that
complainant worked in Charleston, found that there was no evidence
A-1 knew or should have known of complainant's protected activity.
With respect to complainant's claim of discrimination based on race,
the AJ found that the agency articulated legitimate non-discriminatory
reasons for not transferring the complainant and that complainant failed
to show that the agency's reasons were pretextual.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action because the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__07-12-00_______ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2A-1 testified that he did not consider race, sex, or physical disability
when reviewing and/or approving transfer requests. As examples, he
indicated that he filled six positions by accepting transfer requests
from C-1 (white), C-2 (white), C-3 (black), C-4 (black), C-5 (white),
and C-6 (white).