0120053315
03-06-2007
Robert L. Pott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Pott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200533151
Agency No. 1J-630-0101-04
DECISION
Complainant timely initiated an appeal from the agency's February 28, 2005
final decision concerning his equal employment opportunity (EEO) complaint
claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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(a).
During the relevant time, complainant was employed as a Letter Carrier
at the agency's Sappington Branch Post Office in St. Louis, Missouri.
On July 20, 2004, complainant filed the instant formal complaint,
claiming that he was the victim of unlawful employment discrimination
on the bases of race, sex, disability, and age.
On August 17, 2004, the agency issued a partial dismissal. Therein,
the agency identified the instant complaint as being comprised of four
claims, identified as follows:
(1) on June 5, 2004, complainant was threatened by management;
(2) on June 7, 2004, he was accused of throwing flats improperly;
(3) on June 8, 2004, he requested auxiliary assistance and was accused
of throwing flats improperly; and
(4) on July 26 and 27, 2004, he was asked for a copy of his PS Form 3996
[request for assistance or overtime]; and a special route inspection
and overtime, but his requests were denied.
The agency accepted for investigation claim (4). The agency dismissed
claims (1) - (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim.
At the conclusion of the investigation concerning claim (4),
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 requested that the agency issue a final decision.
On February 28, 2005, the agency issued a final decision which is
the subject of the instant appeal. The agency found no discrimination
concerning claim (4). The agency found that complainant did not establish
a prima facie case of race, sex and age discrimination because he did not
identify any similarly situated employee who was treated more favorably
under similar circumstances.
Regarding the basis of disability, the agency found that complainant
failed to establish a prima facie case of disability discrimination.
The agency further argued that assuming arguendo complainant established
a prima facie case of race, sex, age and disability discrimination,
management articulated legitimate, nondiscriminatory reasons which
complainant failed to show was pretextual.2
Finally, the agency determined that it had properly dismissed claims (1) -
(3) in its August 17, 2004 partial dismissal. The agency determined that
complainant failed to show that he suffered harm or loss with respect
to a term, condition or privilege of his employment.
Claim (4)
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See 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.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, non-discriminatory reasons for its
actions regarding claim (4). An Acting Supervisor (AS) stated in an
affidavit that he had no knowledge about complainant's claim that on
July 26 and 27, 2004, he was asked for a copy of his PS Form 3996.
Regarding complainant's claim that his special route inspection
and overtime requests were denied, AS stated that a special route
inspection may be required when a carrier has an overburdened route
that exceeds thirty minutes or more, three or more days a week, for a
period of twelve weeks of consecutive and uninterrupted working period.
AS further stated that he was unaware of complainant "qualifying for a
special inspection." AS stated that complainant's request for a special
route inspection and overtime fell during a period when there was a
moratorium on route inspections. Specifically, AS stated that during
the relevant time, complainant's requests fell under "the National USPS
[Moratorium]on Counting Route April 1, 2004 - August 30, 2004 between
union and management that no route were to be inspected or to qualify for
special inspection." AS stated that while he was unaware of complainant's
age, and that he did not discriminate against complainant based on his
race or sex.
The record contains a document titled "Agreement on route Inspection
Moratorium" dated April 2, 2004, and signed by the Manager, Labor
Relations Policy and Program and the Manger, Delivery Operations.
Therein, the two Managers stated that one of the five agreement
highlights with the union was to "suspend all Route Inspections (including
Specials or those resulting from a grievance settlement) and Minor Route
Adjustments from April 3, 2004 through August 31, 2004."
Complainant has not shown that the agency's articulated reasons, as
discussed above, were a pretext for discrimination.
The Commission determines that the agency's final decision finding no
discrimination concerning claim (4) was proper and is AFFIRMED.
Claims (1) - (3)
In its August 17, 2004 partial dismissal, the agency dismissed claims
(1) - (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
After a careful review of the record, we find that complainant has not
alleged a personal loss or harm regarding a term, condition or privilege
of his employment. Moreover, we find that the alleged incidents were
not sufficiently severe or pervasive to constitute harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Therefore, we find that the agency properly dismissed claims (1) -
(3) for failure to state a claim.
Accordingly, the agency's dismissal of claims (1) - (3) for failure to
state a claim 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 6, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 For purposes of analysis, and without specifically finding, the
Commission will assume that complainant is an individual with a disability
under the Rehabilitation Act.
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0120053315
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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