Louie E. Buckingham, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120063775 (E.E.O.C. Feb. 16, 2007)

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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0120063775

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