01994182
02-01-2002
Dallas Charles II, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dallas Charles II v. United States Postal Service
01994182
February 1, 2002
.
Dallas Charles II,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994182
Agency No. 4-I-640-0121-98
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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),
color (dark), sex (male), religion (Christian), national origin
(American-Indian), age (50), and retaliation when:
(1) he was not allowed to �push up� into a 204-B (Acting Supervisor)
position;
he was not given proper training as a 204-B.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Laborer Custodial, PS-3, at the Independence, Missouri Post Office.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 24, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively to receive a final decision by the agency. On December 22,
1998, complainant requested a hearing before an EEOC Administrative Judge
and subsequently on February 2, 1999, requested a final agency decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, color, sex, national origin, religion and
age discrimination because he failed to show that he was treated less
favorably than similarly situated employees. Specifically, the agency
stated that of the employees cited by complainant, four were White and
one was African American. The agency also stated that the color of the
White employees was unknown and the African American employee's color
was light-skinned. The agency argues that three were males and two
were females; two of these employees were over 40 years old and three
were under 40. The agency contends that none of the five employees'
religion was known. The agency stated that the comparison employees did
not �push up� in the maintenance craft, as they are carriers and clerks,
and the complainant is a custodial employee. Therefore, the agency noted
that complainant was not similarly situated to the comparison employees
as they were from the carrier and clerk craft, while complainant is of
the maintenance craft.
The agency further noted that complainant alleged that he received
the improper training as a 204-B, and management officials violated
Postal Service policy by asking him to accept training from another
204-B supervisor, rather than a qualified supervisor as required.
Regarding that allegation, the agency stated that there had not been
a regular supervisor available to train on Tour 111 since March 9,
1997, and that, complainant stated that he did not have a problem with
being trained by a 204-B supervisor instead. The agency also stated
that complainant expressed to management that the 204-B supervisor who
trained him was very knowledgeable of the position on Tour 111.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
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); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
a prima facie case of race, color, sex, national origin, religion and
age discrimination because he failed to establish that he was treated
differently than similarly situated individuals not in his protected
group. In reaching this conclusion, we note that complainant was not
similarly situated to the comparison employees as they were from the
carrier and clerk craft, while complainant is in the maintenance craft.
In rebuttal, complainant stated that he was not allowed to work as a 204-B
supervisor from May 22, 1998 to the present, and that other employees
not of his protected groups were working as 204-B supervisors, three
White males, and one White female. However, the record shows that
those employees have more seniority than complainant and were able
to be covered by other carrier craft employees, where there was only
one other relief maintenance employee to cover complainant's position.
Therefore, those employees are not similarly situated to complainant.
Complainant failed to otherwise establish an inference of discrimination.
Complainant also stated that he received improper training as a 204-B.
This arose out of a settlement agreement reached during a prior EEO
complaint, wherein management officials agreed to provide one week of
204-B training to complainant.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we
note that complainant was not �pushed up� in maintenance because he
lacked the technical maintenance mechanic level 5 or building equipment
mechanic level 7 promotion eligibility requirements. The record also
shows that management had a discussion with complainant regarding these
deficiencies, and that complainant elected to withdraw his Form O-13
requests for maintenance pushup. The record further shows that there had
not been a regular supervisor available to train since March 9, 1997,
and that complainant agreed to receive training for a 204-B. Also,
the record shows that complainant was satisfied with that training.
Finally, complainant provided no evidence of a discriminatory motive
because of his race, color, sex, national origin, religion and age.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
February 1, 2002
__________________
Date