01991708
03-07-2000
Stephen Ruebusch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Stephen Ruebusch, )
Complainant, )
) Appeal No. 01991708
v. ) Agency Nos. 1C-451-0010-97;
) 1C-451-0067-97
William J. Henderson, ) Hearing Nos. 220-98-5228X;
Postmaster General, ) 220-98-5229X
United States Postal Service, )
(Allegheny/Mid-Atlantic Region) )
Agency. )
)
DECISION
Complainant 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 race (White), sex (male),
age (45) 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.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq.<1> Complainant alleged in his first complaint
(C1) that he was discriminated against on the above-stated bases when
on September 13, 1996, he was issued a seven (7) day Suspension for
Unauthorized Absence from his Assigned Work Area.<2> In his second
complaint (C2), complainant alleged that he was discriminated against
on the bases of race, sex and reprisal when: (1) on October 12, 1996,
he was forced to work on the Columbus Day holiday; and (2) on November
11, 1996, he was not allowed to work on the Veteran's Day holiday.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a MH-04 Mailhandler at the agency's Cincinnati, Ohio Processing and
Distribution Center facility. Regarding C1, complainant claims that he
was authorized by his Group Leader to be away from his assignment without
clocking out on September 13, 1996, and that he received more severe
discipline than comparison employees who also left their duty stations.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed formal complaints on January 6,
1997 and February 18, 1997. At the conclusion of the investigations,
complainant received a copy of the investigative reports and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination regarding the allegation in C1, because he failed to
demonstrate that similarly situated employees not in his protected classes
were treated differently under similar circumstances. The comparison
employees (3 Black males; 1 Black female) cited by complainant were
given discussions for leaving their duty stations without permission.
However, the record reflects that the comparison employees had no record
of past discipline when they received their discussions, while complainant
received the suspension in accordance with the progressive discipline
provisions in the agency's collective bargaining agreement (CBA), as he
had received a Letter of Warning for Improper Conduct on August 30, 1996.
The AJ further found that complainant failed to establish a prima facie
case of reprisal, as he failed to present evidence of prior EEO activity.
The AJ further found that complainant failed to establish a prima facie
case of race or sex discrimination regarding C2, as similarly situated
employees not in his protected classes were not treated differently.
In so finding, the AJ noted that complainant was required to work on
October 12, 1996, under the provisions of the CBA as another Mailhandler
had been granted annual leave for that day. In addition, the AJ found
that the record reflects that complainant was not scheduled to work
on November 11, 1996 as a more senior employee had the priority to be
scheduled for that day under the CBA. The AJ also found that complainant
failed to establish a prima facie case of reprisal regarding C2, as
there was no evidence to suggest that management was aware of his prior
EEO activity at the time the alleged acts of discrimination occurred.
The agency's FAD implemented the AJ's decision. Complainant makes no new
contentions on appeal, and the agency requests that we affirm its FAD.
After a careful review of the record under 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
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), the Commission finds that complainant
failed to present evidence that the agency's action in C1 was in
retaliation for complainant's prior EEO activity or was motivated by
discriminatory animus toward complainant's race, sex or age. We further
agree with the AJ's finding that complainant failed to establish
that the agency's actions in C2 were motivated by sex discrimination.
In addition, we agree with the AJ's finding that complainant failed to
establish that any similarly situated employees not in his protected
classes were allowed to work on the November 11, 1996 holiday while he
was not. However, we disagree with the AJ's finding that complainant
failed to establish a prima facie case of race discrimination regarding
C2, as the record reflects that a similarly situated Black employee was
not forced to work on the October 12, 1996 holiday while complainant was
required to work. Nevertheless, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action, namely, that the CBA
provided that the least senior Mailhandler had to work on the October 12,
1996 holiday, and the sole Mailhandler junior to complainant had been
excused due to pre-approved excess annual leave. We further find that
complainant has provided no evidence which establishes that the agency's
articulated reason was a pretext for discrimination.
In addition, we disagree with the AJ's finding that complainant failed
to establish a prima facie case of reprisal regarding C2, as management
did not know of his prior EEO activities. The record reflects that
complainant's supervisor conceded she knew of his protected activity at
the time the alleged acts of retaliation occurred. However, we find that
management articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the scheduling decisions at issue were determined
by the provisions of the agency's CBA. We further find that complainant
has failed to establish that the agency's articulated reasons were a
pretext for retaliation. Therefore, after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
the FAD is AFFIRMED as CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant
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.
2 The record reflects that the suspension was reduced to a Letter of
Warning after complainant filed a grievance.