0120063775
02-16-2007
Louie E. Buckingham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Louie E. Buckingham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01200637751
Agency No. 4F-945-0144-05
DECISION
JURISDICTION
On June 9, 2006, complainant filed an appeal from the agency's June 1,
2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Acting Security Control Officer at the Bay-Valley District
Office in Oakland, California. On May 6, 2005, the Manager Finance
(S1) approached complainant to inform him that all detail assignments at
the facility would be eliminated and that complainant would have return
to his permanent post the following Monday. S1 also told complainant
that another employee (E1) would take the position of Acting Manager of
Emergency Preparedness, and, according to complainant, S1 further told
complainant that he was to "train" E1 on his duties.
After asking complainant for a list of his mid-year accomplishments
up until May 20, 2005, S1 gave complainant his mid-year evaluation on
May 23, 2005, and, according to complainant, he refused to address the
duties complainant performed from October 1, 2004 through May 13, 2005.
Complainant further claims that the Bay-Valley District Manager directed
S1 to give complainant a negative mid-year review to justify the agency's
decision to not select complainant for the Manager Emergency Preparedness
position. In response to complainant's concerns, the Chairperson of
the Review Committee wrote complainant on May 25, 2005, advising him
that the vacancy announcement for the Manager Emergency Preparedness
position would be reposed to allow for a wider area of consideration
and simultaneously to recruit externally.
On May 23, 2005, complainant contacted an EEO Counselor and filed a
formal complaint on July 29, 2005, alleging that he was discriminated
against on the bases of race (African-American) and in reprisal for prior
protected EEO activity (arising under Title VII) when on May 6, 2005,
S1 told complainant that his detail assignment would be eliminated, that
he would have to return back to his permanent assignment, that E1 would
be the Acting Manager of Emergency Preparedness, and asked complainant
how much time it would take him to train E1.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
FINAL AGENCY ACTION
The agency concluded that complainant failed to establish prima facie
claims of discrimination and retaliation. Specifically, the agency
noted that complainant had failed to show that similarly situated
non-African-American employees were treated more favorably than he.
Although he named E1 as a comparative employee who was treated more
favorably, the agency pointed out that E1 was not similarly situated
to complainant as he held a different position and assumed different
responsibilities. With regard to the retaliation claim, the agency
noted that complainant did not make out a prima facie claim because the
responding management officials were not aware of his prior protected
activity which had occurred over 13 years ago. As so much time had
lapsed between his prior activity and the alleged action, the agency
further determined that there was no necessary causal link between his
protected activity and the alleged discriminatory act.
Nevertheless, the agency assumed that complainant had established prima
facie claims and turned to whether management articulated legitimate,
non-discriminatory reasons for its actions. Upon analyzing management's
affidavits, the agency determined that the position of Acting Security
Control Officer was an ad hoc position which was not funded in the
official budget, and when the agency announced that it would terminate
all unfunded and unauthorized positions, S1 merely followed orders and
informed complainant. Specifically, management followed the instructions
set forth in Postal Service Handbook, EL-312, Part 761, which allows
management to terminate temporary positions when these positions are
no longer needed or funded. Complainant, for his part, did not rebut
management's explanation with any evidence showing that the explanation
is a pretext to discriminate or retaliate against him.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. See 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").3
ANALYSIS AND FINDINGS
As expressed by the agency, to prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary test
set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular
case. See McDonnell Douglas, 411 U.S. at 804 n.14. In a retaliation
claim, complainant can establish a prima facie case by showing that:
(1) he engaged in a protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Texas Dep't 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. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
Having reviewed the evidence in the record, we agree with the agency's
conclusions. Complainant has failed to establish a prima facie case
of discrimination as he has not provided examples of any similarly
situated employees outside of his protected class that have been treated
differently than he under similar circumstances, or any other evidence
that raises even an inference of discrimination. The agency is correct
to note that E1, the comparative employee complainant highlights, is
not similarly situated and therefore does not help him establish a prima
facie case. In fact, the evidence shows that other non-African-American
employees, including Caucasian and Hispanic colleagues, also had their
details terminated under the same policy as complainant. Similarly, with
regard to his retaliation claim, we are in agreement with the agency.
Complainant has not made out a prima facie case because complainant's
prior protected activity occurred thirteen years prior to the alleged
discriminatory act, and the responsible management officials were not
aware of those protected acts.
Despite these findings, we too proceed with the analysis and look to see
whether management indeed set forth a legitimate, non-discriminatory
reason for removing complainant from his detail, and we find that
it has. Both S1 and the facility's District Manager explain in their
affidavits that complainant and other employees on temporary, unfunded
assignments were asked to return to their permanent posts because
there simply were insufficient funds to maintain these positions.
Unlike complainant's position of Acting Security Control Officer, the
position of Acting Manager of Emergency Preparedness, which E1 assumed,
is a funded position, and therefore, was not subject to the termination.
See Affidavits B and C. We further find that management's actions are
indeed supported by Part 761 of the Postal Service Handbook, EL-312,
which explains that temporary positions are subject to the needs of the
agency and at the discretion of management. See Ex. 7. Turning now to
whether complainant has proven that the agency's reason is pretextual,
we find that he has not done so. We note that complainant did not submit
an affidavit to the EEO investigator and has failed to offer any other
arguments in support of his claim. We find nothing in the record to
show that management acted with any discriminatory animus.
CONCLUSION
Having reviewed the record, we find that complainant has failed to prove
his claims. Therefore, we affirm the agency's final decision.
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 16, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 Complainant raised three additional allegations in his complaint,
but the agency dismissed them on September 30, 2005 for failure to state
a claim. As complainant has not specifically appealed these procedural
dismissals, we do not address them in this decision.
3 Neither party submitted statements on appeal.
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0120063775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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