01a00454
03-29-2000
Charles Van Meter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Charles Van Meter, )
Complainant, )
) Appeal No. 01A00454
v. ) Agency No. 4H-350-0043-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
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, 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.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (White) and age (DOB: 9/21/38), when,
on October 2, 1998, his work hours and non-scheduled days were changed.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Distribution Operations (SDO) at the agency's Birmingham,
Alabama facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on November 6, 1998. 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. Complainant initially requested a hearing before an EEOC AJ.
According to the agency's final decision, complainant later requested that
the AJ remand the case to the agency for an immediate final decision.
On September 21, 1999, the agency issued a final decision. In its
FAD, the agency concluded that complainant failed to establish that
the agency's reasons for its action were a pretext for race or age
discrimination. Specifically, the agency found that complainant's hours
were changed in order to accommodate a leave of absence complainant
had requested. The agency stated in its decision that there were no
other SDO's on complainant's tour who could work while complainant was
on leave. Therefore, the agency swapped complaint's hours and schedule
with another employee on a different tour.
On appeal, complainant contends that the Manager is not telling the
truth when he informed complainant that the change would only be for a
short time. He asserts that if the change was not for a long period
of time, then why did the agency implement the schedule change three
weeks prior to complainant's schedule leave. The agency requests that
we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in adverse
action at issue), the Commission finds that complainant failed to
present evidence that would prove more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In reaching this conclusion, we note that complainant failed to present
persuasive evidence that would prove the agency changed schedules in an
effort to force him to retire, or due to a discriminatory motive against
his race or age. Rather, complainant submits, on appeal, a note from
a co-worker who states that the Manager informed him that complainant's
schedule was changed because �he has too many buddies over there.�
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 29, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 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.