01A34852_r
12-09-2003
Marcus J. McCreary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marcus J. McCreary v. United States Postal Service
01A34852
December 9, 2003
.
Marcus J. McCreary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34852
Agency No. 1-H-326-0030-02
DECISION
Complainant initiated an appeal from a July 11, 2003 agency decision
concerning his complaint of unlawful employment discrimination.
Complainant was employed as a mail handler at the agency's Pensacola
Process and Distribution Center. Complainant filed a complaint alleging
that he was discriminated against on the basis of reprisal for prior EEO
activity when on June 27, 2002, he was issued a 14-day suspension.<1>
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. Complainant
failed to request a hearing and the agency issued a final decision.
In its decision finding no discrimination, the agency stated that
it had articulated legitimate, nondiscriminatory reasons for issuing
the suspension. Specifically, the agency noted in its decision that
complainant was issued the 14-day no-time-off suspension because on at
least 24 occasions from July 31, 2001 to May 14, 2002, complainant was
tardy and used unscheduled leave, unscheduled sick leave, unscheduled
leave without pay, unscheduled leave without pay in lieu of sick
leave, and unscheduled absences without leave. The agency stated that
complainant's leave usage was contrary to the duties and responsibilities
of an agency employee as contained in the Employee and Labor Relations
Manual, Parts 666.81 and 666.82.
The record contains a copy of a June 11, 2002 letter of warning from
the agency to complainant which lists 24 instances of complainant's
use of unscheduled leave and absence without leave from February 23,
2002, through May 6, 2002. The record also contains the June 27, 2002
letter of suspension which also identifies complainant's use of leave for
tardiness and unscheduled leave from July 31, 2001, through May 14, 2002.
As an initial matter we note that, because this is an appeal from
an agency 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). Complainant has alleged
a claim of disparate treatment which is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See also 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). For complainant to prevail, he 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).
The Commission finds that assuming arguendo complainant established
a prima facie case of reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its action. The Commission
finds that complainant has failed to show by a preponderance of
the evidence that the issuance of the suspension was motivated by
discrimination. Therefore, we find that the agency properly found no
discrimination.
The agency's decision finding no discrimination 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
December 9, 2003
__________________
Date
1The record reveals that the suspension issued
in the June 27, 2002 notice to complainant was reduced to a seven-day
suspension in a July 3, 2002 letter to complainant.