Marcus J. McCreary, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 9, 2003
01A34852_r (E.E.O.C. Dec. 9, 2003)

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.