01A44922
12-02-2004
Tony E. McNeill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tony E. McNeill v. United States Postal Service
01A44922
12-02-04
.
Tony E. McNeill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44922
Agency No. 4K-200-0155-03
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. 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 laborer-custodian at the agency's Potomac Post Office,
Rockville, Maryland facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on April 18, 2003, alleging that
he was discriminated against on the basis of race (African-American)
when on April 16, 2003, the agency suspended complainant for 14 days
for improper conduct.<1> The FAD also affirmed an earlier decision to
dismiss complainant's claim that the agency discriminated against him
because of his race (African-American) when on April 14, 2003, an agency
manager conducted a pre-disciplinary interview. The agency dismissed
this claim asserting that complainant failed to state a claim within
the meaning of 29 C.F.R. � 1614.107(a)(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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant could not prevail
because he failed to show that he was treated differently from others,
and because the earlier dismissed claim failed to state a claim.
Complainant failed to submit any argument on appeal; the agency requested
that we affirm its FAD.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of race discrimination.
Specifically, we find that complainant failed to show that he was treated
differently from similarly situated employees (complainant failed to show
that the cited employees, who used profanity and were issued letters of
warning, had the same disciplinary history as he), nor did he adduce
any evidence from which an inference of discrimination can reasonably
be drawn. O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308,
312-13 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin
Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson
v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996). Additionally,
we find that the agency appropriately dismissed the claim that an agency
manager discriminatorily conducted a pre-disciplinary interview. However,
the appropriate ground for dismissal was 29 C.F.R. � 1614.107(b)(5),
which provides that an agency may dismiss a claim which alleges a
preliminary step to taking a personnel action.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
____12-02-04______________
Date
1 The notice of suspension shows that on April 8, 2003, complainant caused
a loud disturbance by shouting �Boo� to another employee who screamed
very loudly and frightened customers and other employees. On October
17, 2003, an arbitrator reduced complainant's 14-day suspension to a
7-day suspension.