01a52587
05-18-2005
Ray Adams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Ray Adams v. United States Postal Service
01A52587
May 18, 2005
.
Ray Adams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A52587
Agency No. 1G-758-0013-03
Hearing No. 310-2004-00313X
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 Data Collection Technician, PS-06, at the agency's East Texas
Processing and Distribution Center in Tyler, Texas. Complainant sought
EEO counseling and subsequently filed a formal complaint on September
2, 2003, alleging that he was discriminated against on the bases of
sex (male) and age (D.O.B. 10/10/1944) when his Manager, Distribution
Operations (MDO) sent him home involuntarily and told him no work was
available due to his work restrictions.
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
initially requested a hearing, however the AJ assigned to the case
subsequently sanctioned complainant for failing to respond to his
pre-hearing orders and remanded the complaint to the agency for issuance
of a FAD.
In its FAD, the agency concluded that complainant has not shown that he
suffered any adverse action. The agency noted that although complainant
contends that MDO sent him home, the evidence leads to a different
conclusion. MDO stated that complainant chose to take sick leave rather
than work his assignment. In addition, management noted that complainant
never produced medical documentation stating his restrictions.
The FAD further found that complainant failed to establish a prima
facie case of sex or age discrimination. In so finding, the FAD
noted that complainant failed to identify any similarly situated
employees not in his protected groups who were treated more favorably
than complainant was treated. The FAD then found that assuming, but
only for the sake of argument, that complainant did establish a prima
facie case of discrimination, management has articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, on April 28,
2003, complainant was instructed to work the outgoing pouch rack, however
he refused to do so claiming that he had a restriction from the job from
which he had transferred. The FAD found that MDO asked complainant to
provide a copy of his restrictions and instructed complainant that in
the interim, he would be required to work the pouch rack. The FAD found
that the evidence shows that complainant chose to go home on sick leave,
refusing to sign the required PS Form 3971. The FAD found that MDO noted
in his affidavit that he did not send complainant home, pointing out that
the only way to place someone off the clock involuntarily is to invoke
the provisions of Article 16.7 which were not applicable in complainant's
situation. The FAD then concluded that complainant failed to show that
the agency's reasons were pretext for intentional discrimination.
Complainant raises no new arguments on appeal.<0> The agency requests
that we affirm its FAD. As an initial matter we note that, as this is
an appeal from a FAD 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. 29 C.F.R. � 1614.405(a).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant
must then prove, by a preponderance of the evidence, that the legitimate
reason offered by the employer was not its true reason, but was a pretext
for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).<0>
Here, assuming complainant established a prima facie case of sex and
age discrimination, the agency articulated legitimate, nondiscriminatory
reason for its challenged action, and complainant has not proven, by a
preponderance of the evidence, that the legitimate reasons offered by
the employer were pretextual. There is simply no evidence to support a
finding that complainant was denied work in violation of either Title
VII or the ADEA. Accordingly, after a careful review of the record,
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
May 18, 2005
__________________
Date
0 1As complainant does not contest the AJ's decision to cancel the
hearing, we will not address whether the remand was proper.
0 2As complainant alleges solely sex and age discrimination, not
disability discrimination, we assume that he does not intend to
raise a claim that the agency failed to provide him with a reasonable
accommodation. Accordingly, a disparate treatment analysis is proper
in this case.