Dale Smith v. United States Postal Service 01A05180 March 29, 2001 . Dale Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Great Lakes Area, Agency. Appeal No. 01A05180 Agency No. 1-J-602-0075-99 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleged that he was discriminated against on the bases of race (Black) and sex (male) when he was harassed and threatened between March 5, and June 15, 1999, and removed from employment effective August 7, 1999. The record reveals that during the relevant time, complainant was employed as a Full Time Mail Handler, PS Level 4, at the agency's Palatine Processing and Distribution Center, Palatine, Illinois. Believing he was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on October 22, 1999. At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge (AJ) 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. § 1614.108(f), the agency issued a final decision. In its FAD, the agency concluded that complainant failed to establish a prima facie case of race and sex discrimination in that he failed to demonstrate that he was treated less favorably than similarly situated employees outside of his protected class. On appeal, complainant makes no substantive arguments concerning the merits of his case. The agency requests that we affirm its FAD. Complainant began duty with the Postal Service on May 30, 1984. On September 18, 1997, he signed a “last chance” settlement agreement in which he agreed to maintain satisfactory attendance, defined as “no more than three unscheduled absences during any six month period during the life of the agreement, and no instances of AWOL.” The agreement was to last two years. Unscheduled absences were defined as “any absence which is not requested and approved in advance, (tardies, emergency leave, annual and/or sick).” Between September 9, 1998 and February 3, 1999, complainant had six attendance infractions, including one AWOL. In addition, he was absent from February 10, 1999 through June 1, 1999. On March 2, 1999 he was issued a proposed notice of removal, based on his infractions from September 1998 to February 3, 1999. Having apparently not received the notice of removal, he reported to work on June 1, 1999 and was informed that he had been removed from employment. However, as it was determined that the notice of removal had been sent to the wrong address, it was rescinded and he was reissued another notice of proposed removal on June 11, 1999. On July 29, 1999, he was notified that his removal would become effective August 7, 1999. On October 22, 1999, complainant filed a formal EEO complaint stating that the agency had allowed co-workers to harass and intimidate him by threatening to put sand in the gasoline tank of his vehicle. He further stated that he had been terminated for violating the terms of the “last chance” agreement but that it was in fact the agency who violated the agreement by not honoring his requests for leave between February 10 and June 1, 1999, to attend to his wife who was undergoing complications with her pregnancy. He essentially contended that such agency actions were due to his race and sex. He reiterated these allegations in a statement dated March 23, 2000. He further stated that although he did not qualify for leave under the Family and Medical Leave Act, his supervisor had told him that his request for leave would be honored. Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency that complainant failed to establish a prima facie case of race and sex discrimination. In order to establish a prima facie case, a complainant may show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). Complainant, however, has not identified any other similarly situated employees outside of his protected class who received more favorable treatment. As regards complainants claim of harassment, the Commission notes that all of the incidents complained of are untimely under EEOC regulations. According to his March 23, 2000 affidavit, the most recent incident allegedly occurred two days after complainant returned to work on June 1, 1999. Additional incidents reportedly occurred in 1998 and 1995. As complainant first contacted an EEO counselor on August 12, 1999, all of these incidents fall outside of the 45 day time limit under EEOC regulations. We further note that complainant's allegation that the agency violated the terms of the “last chance” settlement by not permitting him family leave between February 10 and June 1, 1999, during and after his wife's pregnancy, even though his supervisor told him his request for family leave would be honored, is not germane to his claim of discrimination. While it is unclear from the record whether complainant's leave requests during this period were “honored” by the agency, the fact remains that complainant took the leave, and, contrary to his assertion, he was not terminated for doing so. According to the June 15, 1999 letter of proposed removal, complainant was terminated for six violations that occurred between September 1998 and February 2, 1999, including one instance of being AWOL on January 26, 1999, all of which occurred before he took family leave. Complainant has not alleged that these six violations either did not occur, or that the agency's response to them was a pretext for discrimination. 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 (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 March 29, 2001 __________________ Date