01981350
03-17-2000
Andrew Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E. / S.W. Region) Agency.
Andrew Thompson v. United States Postal Service
01981350
March 17, 2000
Andrew Thompson, )
Complainant, )
) Appeal No. 01981350
v. ) Agency No. 4-H-350-1231-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E. / S.W. Region) )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black) and sex (male) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was discriminated against on May 7, 1996, when
he was placed off the clock. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Sheffield, Alabama
Postal Facility. Complainant's immediate supervisor was supervisor A,
Customer Services, EAS-16. Complainant's second-line supervisor was the
Postmaster, EAS-20. Complainant alleged that on May 7th, he clocked
on, checked his vehicle and began processing his First Class letters.
He stated that he had stopped by supervisor A's desk and got a count.
Complainant further stated that supervisor A came over to his letter case
and asked complainant what was on top of it. Complainant testified that
he told supervisor A that there was mail on top of the letter case which
he did not place there. Complainant further testified that supervisor
A later came back to his letter case with two change-of-address cards;
questioned complainant about them; returned to his office; and began to
stare at complainant while writing something. Complainant stated that
supervisor A returned once more to his letter case. Complainant further
stated that he asked supervisor A if something was wrong, but that
supervisor A instructed him to continue working. Complainant declared
that supervisor A then left, but returned to his letter case for a third
time and asked if he had a problem. Complainant stated that his response
was that he was working. Complainant further stated that supervisor
A then began to stand there watching him work. Complainant testified
that not long afterwards, supervisor A approached him again and this
time indicated that the Postmaster wanted to talk to him. Complainant
further testified that he eventually went to the Postmaster's office,
and that supervisor A told the Postmaster that he felt threatened by him.
Complainant stated that the Postmaster then told him to "hit the clock"
and return to work the next day. Complainant further stated that he
clocked-out and peacefully left the facility. Complainant cited a White
male whom he believes had gotten into a similar situation with another
supervisor, but who was not placed off the clock.
Supervisor A stated that while sitting at his desk on the morning of
May 7th, he heard someone say, "What are you staring at?" Supervisor A
further stated that complainant's actions were intimidating and that
complainant appeared to be angry. He indicated that complainant again
asked him why he was staring and what the problem was. Supervisor A
testified that he then instructed complainant to continue working.
While noting that complainant disobeyed his instruction and again
inquired as to why he was staring and what the problem was, supervisor
A stated that he then went over to complainant's letter case and asked
complainant if he was alright. Supervisor A testified that at that point,
complainant stepped towards him and responded in a hostile tone, "What are
you staring at?" Supervisor A stated that because he felt threatened by
complainant's actions, he immediately directed him to the Postmaster's
office. Supervisor A further stated that complainant was very angry,
boisterous and belligerent in the Postmaster's presence. Supervisor A
declared that complainant had to be asked, twice, to leave the premises.
The Postmaster testified that complainant was brought into the office
by supervisor A because of his threatening actions and verbal abuse
towards him. She indicated that because complainant was very angry,
boisterous and belligerent, her decision at that time was to remove
him from the building. She declared that her assessment was that a
"threat with real intent to harm existed." The Postmaster stated that
complainant has had a hostile attitude towards supervisor A in the past.
The Postmaster further stated that she has not had any similar incidents
involving other employees.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on August 21, 1996.
An investigation was conducted, and the agency issued its FAD on November
10, 1997.
The FAD concluded that complainant failed to establish a prima facie
case of race or sex discrimination because he presented no evidence that
similarly situated individuals not in his protected classes were treated
differently under similar circumstances. The FAD then concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions,
namely, that the Postmaster stated that she believed complainant posed an
imminent threat of harm. The FAD further noted that complainant had also
exhibited hostility toward Supervisor A in the past as well. The FAD
finally concluded that complainant's evidence did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination.
ANALYSIS
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that he belongs to a statutorily protected
class and that he was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom she alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Here the record shows that complainant is a member of two protected
groups: Black and male. However, the Commission finds that complainant
has not established that other employees not of his protected group
were treated differently under similar circumstances. Complainant cited
one White male for comparison. However, the record does not show that
this White comparator was involved in a similar situation involving
the Postmaster. In fact, the Postmaster stated that she has not had any
similar incidents involving other employees. Thus, the Commission finds
that all of the relevant aspects of complainant's employment situation are
not nearly identical to those of the comparative employee whom he alleges
was treated differently. In the absence of any other evidence from which
to infer a discriminatory motive, the Commission finds that complainant
has not established a prima facie case of race or sex discrimination.
Accordingly, based on a thorough review of the record, and for
the foregoing reasons, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 17, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.