Walter H. Andrew, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionNov 7, 2001
01993598 (E.E.O.C. Nov. 7, 2001)

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