01993598
11-07-2001
Walter H. Andrew, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Walter H. Andrew v. United States Postal Service
01993598
November 7, 2001
.
Walter H. Andrew,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01993598
Agency No. 1-G-7410019-98
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 Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of race (Caucasian), color (white), sex (male), age
(date of birth: June 9, 1943), and disability (80% disabled veteran �
back, knees, hips, flat feet and diabetes) when, beginning on November
12, 1997, he was denied overtime, while on voluntary change of schedule,
and while subsequently reassigned pending the investigation of a sexual
harassment claim against him.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's Tulsa, Oklahoma Main Post Office.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December
28, 1997. 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 failed to establish a
prima facie case of discrimination based on race, color, and sex when he
did not show that he was treated differently than similarly-situated
individuals outside of his protected classes. Specifically, the
agency asserted that only two (2) of the seven (7) individuals named
by complainant are similarly-situated to complainant, and neither of
those two individuals was treated more favorably than complainant.
The agency also found that complainant failed to establish a prima
facie case of age discrimination, in that complainant did not show
that age was a consideration in the employer's decisions. The agency
also found that complainant failed to establish a prima facie case of
disability discrimination. In particular, the agency concluded that
complainant failed to show that he was an individual with a disability
under the Rehabilitation Act. The agency noted that complainant failed
to indicate how he was substantially limited in a major life activity.
The FAD then noted that if complainant had established a prima facie case
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its action. Finally, the FAD found that complainant failed
to establish that the agency's reasons were pretext for discrimination.
Accordingly, the FAD found that complainant failed to show that the
agency's action was unlawful discrimination.
Complainant filed this appeal without comment. The agency requests that
we affirm its FAD.
A claim of disparate treatment is examined under the three-part 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 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).
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. While 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
this complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hisnandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established his prima facie case
of discrimination, the Commission turns to the agency to articulate
a legitimate, nondiscriminatory reason for its action. With regard to
overtime, the agency noted in the FAD that it is under no obligation to
give overtime work to employees while on a voluntary change of schedule.
In addition, the record reflects that agency officials believed that
persons on a voluntary change of schedule were not eligible to sign
the overtime desired list under the terms of the applicable negotiated
agreement. Complainant does not dispute that he was on voluntary change
of schedule. With regard to complainant's reassignment, several witnesses
asserted in their affidavits that the agency reassigned complainant
pursuant to his own request. Although the Plant Manager stated that she
did not specifically recall whether complainant made such request, or
whether she unilaterally reassigned him, other employees testified that
complainant verbalized his wish to be reassigned in order to distance
himself from his co-worker who accused him of sexual harassment, and
told them he was going to ask the Plant Manager for such reassignment.
Upon review of the record, the Commission finds that the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
The burden returns to complainant to show that the agency's reasons were
pretext for discrimination. In order to establish that the agency's
articulated reason is pretextual, complainant must either show that
a discriminatory reason more likely motivated the agency or that the
agency's proffered explanation is unworthy of credence. Burdine, 450
U.S. at 253. Complainant has not made such a showing. Accordingly, we
find that complainant has not established discrimination based on race,
color, sex, age or disability.
Therefore, after a careful review of the record, it is the determination
of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 anothis 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 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 his 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 othis 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
November 7, 2001
__________________
Date