01A33104
03-31-2004
James A. Kraftician, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
James A. Kraftician v. United States Postal Service
01A33104
March 31, 2004
.
James A. Kraftician,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A33104
Agency No. 4C-170-0017-02
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. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Full Time City Carrier, PS-06 at the Allentown Post Office,
located in Allentown, Pennsylvania. Complainant sought EEO counseling
and subsequently filed a formal complaint on April 22, 2002, alleging
that he was discriminated against on the bases of race (Caucasian), sex
(male), color (White), age (D.O.B. 2/20/48), and in reprisal for prior
EEO activity when:
(1) on January 16, 2002, he was issued a letter of decision (removal);
and
on February 7, 2002, during a labor arbitration hearing concerning his
proposed removal, the information presented was prejudicial against him.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. On appeal,
complainant claims that he did not receive a copy of the investigative
report, but the agency contends that he did receive it on December 6,
2002. Upon review and without further information, we are not persuaded
by complainant's contentions.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, color, sex and age discrimination.
Specifically, the agency found that there was no evidence that
complainant's named comparison employees were similarly situated to him
and were treated more favorably than he was under similar circumstances.
The agency also found that complainant failed to establish a prima facie
case of reprisal discrimination. The agency found that complainant failed
to establish a connection between management's actions and complainant's
prior EEO activity. Complainant makes no new contentions on appeal.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant 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 reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; 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
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Assuming arguendo, that complainant established a prima facie case
of discrimination based on all of his alleged bases, the Commission
finds that the agency has articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, we find that complainant was
issued a Letter of Proposed Removal because on September 12, 2001, he
engaged in an altercation with a postal customer. The record reveals
that the Supervisor, Customer Service, issued complainant the letter
based on his personal interview with and a sworn statement from the
customer with whom complainant had the altercation, and also based on his
pre-disciplinary interview that he conducted with complainant. Further,
during the arbitration hearing, the Postmaster revealed information from
complainant's personnel file in order to establish complainant's history
of inappropriate behavior toward co-workers and customers.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the Commission
finds that the complainant has failed to do so. Complainant has failed
to prove that the agency's explanations are unworthy of belief and
motivated by unlawful animus towards his protected classes. Therefore,
after a careful review of the record, including 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
March 31, 2004
__________________
Date