01a10578
02-08-2001
Tshombe D. Myles, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Tshombe D. Myles v. United States Postal Service (Southeast Area)
01A10578
February 8, 2001
.
Tshombe D. Myles,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A10578
Agency No. 4-H-350-0330-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of retaliation (prior EEO complaint) when, on August
24, 1999, he was not awarded a Parcel Post position for which he was
designated the senior qualified bidder.
The record reveals that during the relevant time, complainant was employed
as a Mail Processor, PS-04, at the agency's Mobile, Alabama Processing
and Distribution Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on October 16, 1999. 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, the agency issued a final decision.
In its FAD, the agency concluded that complainant was not awarded the
position in question because he failed to submit a live bid request
within 10 days after being designated as the successful bidder on the
position, as required by Article 37.3F.8(a) of the agency's Collective
Bargaining Agreement (CBA). Neither complainant nor the agency makes
any contentions on appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we find
that contrary to the agency's conclusion that complainant failed to
establish a prima facie case of retaliation, complainant did establish
such a prima facie case, because he stated in his complaint that he had
filed an EEO complaint four or five months earlier against the Human
Resources Specialist (HRS) who was in charge of processing his present
bid. We therefore find that the earlier protected activity of filing
the EEO complaint and the later adverse action of not being awarded
the Parcel Post position were sufficiently close in time to permit an
inference of retaliatory motive under Hochstadt, supra. See also Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996)
(generally, the Commission has held that a causal connection may be
established if the events occurred within one year of each other).
The Commission further finds, however, that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that the HRS testified that the Parcel Post position
was awarded to the next senior bidder when complainant failed to submit a
live bid request within 10 days after being designated as the successful
bidder on the position, as required by the CBA. Complainant has not
contended that he did submit such a request.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 8, 2001
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.