01972984
03-01-1999
Robert O'Brein, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.
Robert O'Brein v. United States Postal Service
01972984
March 1, 1999
Robert O'Brein, )
Appellant, )
) Appeal No. 01972984
v. ) Agency No. 4D-280-1313-94
) EEOC No. 140-95-8121X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him 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 (ADEA) of 1967, as amended, 29
U.S.C. �621 et seq. The Commission accepts this appeal in accordance
with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he
claimed discrimination on the bases of race (White), sex (male), and age
(4/10/47), when he was non-scheduled due to allegations of misconduct.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission administrative judge
(AJ). A hearing was conducted on July 24, 1996.
On December 16, 1996, the AJ issued a recommended decision (RD)
finding no discrimination. The AJ concluded that appellant failed to
establish a prima facie case in that he failed to show that similarly
situated employees outside of his protected classes were treated more
favorably than he was. Specifically, the AJ found that the comparative
employees cited by appellant were either in his protected classes, or
they were not similarly situated in that they were career employees,
whereas appellant was a transitional employee. Assuming appellant had
established his burden, the AJ found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the Supervisor of Customer Services testified that based upon telephone
calls received at the agency from the manager of a pizza restaurant,
appellant engaged in inappropriate conduct. Specifically, the Supervisor
testified that an investigation revealed that appellant deviated from
his route, was not courteous and obliging or quiet and diligent in work,
and failed to refrain from loud taking and the use of profane language.
The Supervisor testified that appellant was a transitional employee,
and he made the decision to non-schedule appellant based upon appellant's
behavior at the restaurant.
Appellant testified that he had not engaged in the conduct cited by the
manager of the restaurant, rather, he had just questioned the manager
regarding the driving practices of a delivery person, who appellant
alleged had cut him off and almost injured another individual. However,
the AJ found that despite appellant's position that he had done nothing
wrong, it was not the position of the Commission to second guess the
actions of an agency official who believed that the incident had in
fact taken place based on telephone conversations with the Manager,
as well as a statement by the delivery person. Furthermore, the AJ
found no evidence that an impermissible bases had led the Supervisor to
non-schedule appellant. In sum, the AJ found that appellant failed to
present sufficient evidence that the agency's reasons for its actions
were pretext for discrimination, and thus found appellant had not been
discriminated against.
On January 17, 1997, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
We note appellant has not raised any new contentions on appeal.
We therefore discern no basis in which to disturb the AJ's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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 this
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 this 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 this 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 this 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 1, 1999__ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations