01986457
03-15-2000
Charles J. Threatt, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles J. Threatt v. United States Postal Service
01986457
March 15, 2000
Charles J. Threatt, )
Complainant, )
) Appeal No. 01986457
) Agency No. 4F-926-0302-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On August 20, 1998, Charles J. Threatt (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated July 21, 1998, concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race, color, religion and retaliation when, among other
things, he was issued a seven day suspension.
BACKGROUND
Complainant was employed by the agency as a Vehicle Maintenance Assistant
at the Laguna Niguel, California Post Office. Complainant initiated EEO
Counseling on October 15, 1997. He filed a formal complaint on October
29, 1997, alleging discrimination on the bases of race (Black), color
(black), religion (Seventh Day Adventist) and retaliation (prior EEO
activity) when:
1) on July 29, 1997, he was issued a seven day suspension, effective
August 25-31, 1997;
2) on September 5, 1997, he was denied Family Medical Leave Act (FMLA)
sick leave;
3) on July 29, 1997, his non-scheduled days off were changed;
4) he was denied training;
5) on October 6, 1997, he was denied a cash advance; and
6) he was made to work in a steel storage container.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. After complainant failed to request a hearing,
the agency issued its FAD on July 21, 1998.
In its FAD, the agency found that the complainant had failed to establish
a prima facie case of race, color, religion and retaliation discrimination
because he was unable to demonstrate that he was treated differently than
any other comparative employee in a similar situation. The FAD further
stated that complainant had failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its decision
were a pretext for discrimination. This appeal followed.
ANALYSIS AND FINDINGS
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. 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. 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).
In response to complainant's claims of discrimination, the agency
presented evidence that complainant had been issued the suspension for
failure to follow instructions and failure to properly submit a request
for leave form. The form had not been presented to complainant's
supervisor for the proper signature and complainant was subsequently
charged with Absence Without Leave (AWOL). Regarding the schedule change
for complainant's days off, the agency asserted that the days were changed
in order to comply with an EEO Settlement Agreement that resolved an
earlier EEO complaint of complainant. According to the agency, the
"steel storage container" that complainant claimed he was made to work
in was actually the outdoor parts storage shed that complainant would
have to retrieve parts from in the course of his duties repairing postal
vehicles, but he was not required to perform his job duties inside
the shed. Regarding the denials of the requests for a cash advance,
for FMLA leave and for training, the management officials testified that
they were unaware complainant had ever made requests for these items.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its action.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
We find that complainant has failed to do so. Complainant did not
rebut the agency's claim that the change in schedule was due to an
EEO Settlement Agreement, did not show that he had actually obtained
a signature on his request for leave form before leaving the postal
facility, and did not contradict the agency's claims that he was not
required to work in the parts shed, but to just retrieve parts from it
as needed. The complainant did not provide any evidence that he had
actually requested FMLA leave, a cash advance or training. He provided
no specifics in either his affidavit, or his appeal statement, regarding
his claims which would show that the agency's reasons were pretext.
Therefore, the agency's determination that complainant failed to establish
that he was discriminated against was correct.<2>
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 15, 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
1 On 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.
2 We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of race, color,
religion and retaliation discrimination because he was unable to
demonstrate that he was treated less favorably than any similarly
situated employee. We note that to establish a prima facie case,
complainant must only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
Furnco, 438 U.S. at 576. It is not necessary for the complainant to
rely strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem
Steel Corp., 82 F.3d 157 (7th Cir. 1996).