0120083236
09-25-2008
Andy C. Barnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andy C. Barnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083236
Agency No. 1H-331-0063-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 13, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as an Electronic
Technician, PS-11, at the agency's Miami Processing and Distribution
Center in Miami, Florida.
On October 15, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (African-American) and color (Black) when:
on or about July 31, 2007, he did not receive an award for dismantling
and moving the OCR machines.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but subsequently withdrew his request in favor of a final
agency decision. The agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
In its June 13, 2008 final decision, the agency dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim finding complainant was not aggrieved. The agency then addressed
the instant complaint on the merits. The agency found that complainant
failed to establish a prima facie case of race and color discrimination
because he did not show that similarly situated individuals outside
of his protected classes were treated more favorably under similar
circumstances. The agency found that, assuming for the sake of argument
that complainant established a prima facie case of race and color
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext
for discrimination.
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. 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 Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Acting Manager of Maintenance (AM) stated that complainant did not
receive an award for dismantling and moving the OCR machines because his
participation was "minimal." AM further stated that seven identified
employees volunteered for the special project which consisted of
dismantling and moving the OCR Machines; and performed "in a manner
beyond and above their normal duties." Specifically, AM stated that
seven employees volunteered "when the request for volunteers was made
at the beginning of the project." AM stated that other employees,
including complainant, assisted "minimally" at the close of the project.
AM stated that complainant worked "a few hours on a project that consisted
of approximately three weeks in duration and approximately 140 man hours."
AM stated that he explained to complainant that his participation in the
last couple of days "to make a deadline and a need for manpower did not
equate to an award." AM stated "all awards are at Management's discretion
in accordance with the Employee Labor Relations Manual. The criteria are
specific to the project. The complainant did not meet the criteria."
Moreover, the AM stated that complainant's race and color were not
factors in his determination not to give him an award.
In this case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 25, 2008
Date
1 Because we affirm the agency's finding of no discrimination on the
merits for the reasons stated herein, we find it unnecessary to address
the disposition of the complaint on procedural grounds (i.e. failure to
state a claim).
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0120083236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083236