01972472
03-17-1999
David L. Bupp, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region),) Agency.
David L. Bupp, )
Appellant, )
) Appeal No. 01972472
v. ) Agency Nos. 1D-234-1022-95
) 1D-234-1037-95
William J. Henderson, ) Hearing Nos. 120-96-5380X
Postmaster General, ) 120-96-5381X
United States Postal Service, )
(Allegheny/Mid-Atlantic Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of sex (male), race
(White), and reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges he was discriminated against when: (1) his request
for a change of craft/reassignment was denied on February 18, 1995;
and (2) his request for reconsideration was denied on July 24, 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant, a PS-4
Mail Processor on Tour 3 at the agency's Norfolk, Virginia, General Mail
Facility, submitted a request for change in craft/reassignment from an
unassigned regular in Automation to a position as a part-time flexible
PS-4 Mail Handler on Tour 1. Pursuant to processing the request (Request
1), appellant's supervisor rated his job performance and stated that
while appellant's work performance and attendance were average, and his
attitude towards supervision was poor, she recommended his acceptance
for a transfer. Appellant was informed by the Plant Manager (PM) of
the Hampton Roads Processing and Distribution Center on February 18,
1995, that Request 1 was denied, based on the supervisor's evaluation,
appellant's attendance record and other factors. Appellant subsequently
requested reconsideration of the denial of his initial request
(Request 2), and was rated by another supervisor, who evaluated his work
performance as average, attitude toward supervision as poor, and stated
that she would not accept him as a transfer. On August 1, 1995, appellant
was informed by the PM that his request for reassignment was denied due
to an unacceptable evaluation and increasingly poor attendance record.<1>
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed formal complaints on April 19,
1995, and September 25, 1995. At the conclusion of the investigations,
appellant received copies of the investigative reports and requested a
hearing before an EEOC Administrative Judge (AJ). The AJ consolidated
appellant's complaints and, following a hearing, issued a Recommended
Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of race or sex discrimination with regard to Request 1, as he failed to
establish that similarly situated employees not in his protected groups
were treated differently. However, the AJ found that while appellant
failed to establish a prima facie case of race discrimination regarding
Request 2, he did demonstrate a prima facie case of sex discrimination
as a similarly situated female Mail Processor was granted her request
for change of craft after her initial request was denied. The AJ further
found that appellant established a prima facie case of reprisal regarding
Request 2, as the agency was aware of his EEO activity at the time it
denied Request 2.
The AJ, however, found that the agency articulated legitimate,
nondiscriminatory reasons for denying Request 2, namely, that the PM
stated that he considered requests for reassignments on a case-by-case
basis, and denied appellant's reconsideration request due to his
unsatisfactory attendance records and poor human relations skills.
Finally, the AJ found that based on the credibility of the agency's
witnesses, appellant did not establish that more likely than not,
the agency's articulated reasons were a pretext to mask unlawful sex
discrimination and retaliation. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding that
appellant failed to present evidence that more likely than not, any of the
agency's actions regarding denial of Request 2 were a pretext for race or
sex discrimination or retaliation. Hochstadt v. Worchester Foundation for
Experimental Biology, Inc., 425 F. Supp 318 (D. Mass. 1976), aff'd, 545
F.2d 222 (1st Cir. 1976). We thus discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment of
the record and the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We note that although
appellant was informed by the PM on August 1,
1995, that Request 2 had been denied, he alleged
in the formal complaint that the discriminatory
act by the agency occurred on July 24, 1995,
the date he filed Request 2.