01A22072_r
09-04-2002
Charles T. Jordan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles T. Jordan v. United States Postal Service
01A22072
September 4, 2002
.
Charles T. Jordan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22072
Agency No. 4-J-604-0176-00
DECISION
Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant filed a complaint in which he claimed that the agency
discriminated against him on the bases of his sex (male), age (52), race
(Black), and color (brown) when approval of his request for reassignment
was unreasonably delayed.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. On December 10, 2001, complainant rescinded his request for a
hearing and instead requested an agency decision without a hearing. The
agency issued a decision finding that complainant failed to establish
a prima facie case of race, color, sex, and age discrimination. It is
from this final order that complainant now appeals.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
Assuming arguendo, that complainant established a prima facie case of
race, color, age, and sex discrimination, we shall examine the reasons
articulated by the agency for the delay in complainant's reassignment.
The agency stated that complainant requested a reassignment on July
1, 2000, to another facility as a full-time custodian. The agency
noted that there is a one-year service requirement for reassignment to
another facility and that complainant began working on August 1, 1999.
According to the agency, complainant's request for reassignment was
approved on September 13, 2000, with a starting date of September 23,
2000. The agency stated that Personnel Services subsequently notified
the Postmaster of complainant's facility on September 18, 2000, that
the desired release date for complainant's reassignment was October
7, 2000. According to the Postmaster, he suggested to complainant that
his release date be revised to November 4, 2000, because complainant was
in the midst of a project that both he and complainant expected would
take an additional thirty days to complete. The Postmaster stated that
complainant agreed to this request. According to the agency, complainant
was notified on October 30, 2000, that his reassignment would be effective
November 4, 2000. We find that the agency articulated legitimate,
nondiscriminatory reasons for the delay in complainant's reassignment.
A review of the record reveals that complainant has not established
that the agency's reasons for the delay in his reassignment were pretext
intended to mask discriminatory intent. Complainant has not refuted the
agency's position that he could not be reassigned until at least one year
after his employment began. Complainant has not demonstrated that the
delay in his reassignment date to November 4, 2000, was the result of
discriminatory actions. Complainant has not refuted the Postmaster's
statement that both he and complainant agreed on a release date of
November 4, 2000, due to their belief that it would take an additional
thirty days for complainant to complete his project. We find that
complainant has failed to show that the delay in his reassignment was
motivated by race, color, age, or sex discrimination.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order, because a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 4, 2002
__________________
Date