01996742
03-29-2002
Ellington D. Lockett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ellington D. Lockett v. United States Postal Service
01996742
03-29-02
.
Ellington D. Lockett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996742
Agency No. 4G-780-0420-98
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Part-Time Flexible Distribution Clerk at the agency's Temple, Texas
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on November 18, 1998, claiming that he was discriminated
against on the bases of race (African-American) and reprisal (prior EEO
activity under Title VII) when he was continually denied a 40-hour work
week, from January 3, 1997 through August 12, 1998, in order to prevent
him from becoming a Full-Time Regular employee. 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 had not shown a prima
facie case of race discrimination or retaliation. It found that he had
not established a causal connection between the action and his prior
EEO activity. It further found that the record did not show that the
agency's actions were a pretextual mask for discriminatory motivation, and
that therefore, complainant had not proved that he had been discriminated
against as claimed.
On appeal, complainant advances three arguments. The first is that the
agency incorrectly analyzed the complaint by using the legal framework
for an individual disparate treatment case instead of for a systemic
disparate treatment claim. Complainant argued that because the agency
official named in complainant's complaint had once been found by the
Commission to have discriminated against a co-worker on the bases of race,
national origin, sex and reprisal that a �pattern and practice� of racial
discrimination had been established. Complainant's second argument is
that the agency's investigation was inadequate because it misrepresented
the status of the comparator employees. The final argument was that the
Postmaster's articulation of his legitimate, nondiscriminatory reason
was inadequate. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
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, she 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established 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. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established his prima facie cases of
discrimination, we turn to the issue of whether the agency has articulated
legitimate, nondiscriminatory reasons for its actions. According to the
affidavit of the Postmaster of complainant's facility, the number of hours
worked by a Part-Time Flexible (PTF) employee is a decision made by the
supervisor based on the needs of the service. The needs of the service
are determined by mail volume and workload present on any given day.
A copy of the applicable collective bargaining agreement (CBA) contained
in the record states that PTF employees may be scheduled for less than
eight hours per day and less than 40 hours per week. The Postmaster
also stated that he was not able to convert complainant to Full-Time
Regular status due to a complement cap placed on the number of clerks
at that facility.<1> Complainant's immediate supervisor testified
that at the time complainant was hired, he was informed that as a PTF
he would not be guaranteed a 40 hour a week schedule, and would not be
guaranteed to be scheduled for eight hours on the days he was to work.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions.<2>
Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returns to the complainant to demonstrate that the
agency's articulated reasons were a pretext for discrimination. We find
that complainant has failed to do so. Complainant has not shown that he
was entitled to work 40 hours per week as a PTF. He has not shown that
there existed a regulation, agency practice or clause in the CBA that
guaranteed conversion to Full-Time Regular status for PTF employees
who worked 40 hours per week on a regular basis. While complainant
argued that the Postmaster had been found to have discriminated against
another agency employee (CO-1) in a separate discrimination complaint,
we do not find that this fact, in and of itself, is enough to show
that complainant was also the victim of illegal discrimination in his
complaint. Additionally, the other complaint involved a different
employment action and CO-1 was not of the same protected classes as
complainant. Therefore, the agency used the correct legal framework to
analyze complainant's complaint. Complainant did not show that either
a formal policy of the agency was involved in both CO-1's complaint
and the instant one, or that a pattern of disparate treatment existed,
which would be required in a case attempting to establish a pattern and
practice of systemic disparate treatment. See generally City of Los
Angeles, Department of Water & Power v. Manhart, 435 U.S. 702 (1978);
International Brotherhood of Teamsters v. United States, 431 U.S. 324
(1977). We further find, after a review of the record and the content
of the Report of Investigation, that the agency's investigation into
complainant's claim was adequate. We have noted complainant's objections
to the agency's characterizations of the comparators, and have taken
those objections into account in our analysis. We find, therefore,
that the agency's determination that complainant failed to establish
that he was discriminated against was correct.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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
____03-29-02______________
Date
1 Complainant filed a previous complaint regarding the Postmaster's
failure to convert him to Full-Time Regular status on January 3, 1997.
An EEOC AJ found that complainant had not been discriminated against,
and the agency implemented the AJ's decision. The Commission upheld
the decision in EEOC Appeal 01994270 (September 25, 2001), RTR denied,
EEOC Request No. 05A20159 (March 1, 2002). Complainant was converted
to a Full-Time Regular employee on October 24, 1998 through the union
grievance procedure.
2 We find that the Postmaster's articulation was adequate and satisfied
the agency's burden under the McDonnell Douglas / Burdine / Hicks
framework, as articulated above.