01985999
03-24-2000
Daniel Allen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel Allen v. United States Postal Service
01985999
March 24, 2000
Daniel Allen, )
Complainant, )
) Appeal No. 01985999
v. ) Agency No. 4-H-350-1269-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
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>
For the reasons stated herein, the agency's FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him based on the above factors.<2>
BACKGROUND
During the period in question, complainant was employed as a City
Carrier, Grade 05, in an Alabama facility of the agency. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against him based on race (black) and sex (male) when it issued him a
Letter of Warning (LOW) charging him with an unauthorized stop/deviation
of his route.
Complainant stated that the agency's action was discriminatory because
carriers outside of his protected classes were not disciplined in the
same manner as he for similar infractions. Complainant indicated, for
example, that a female carrier committed the same infraction of which
he was charged but she did not receive a LOW. He added that the LOW
at issue here was just one incident of harassment, among many, by his
supervisor (C-1) and the facility postmaster.
C-1 stated that he issued the LOW because he observed complainant's
vehicle in the parking lot of a fast food restaurant that was a deviation
from his mail route. He further indicated that complainant was given
the LOW pursuant to a provision of the carrier handbook that read,
"Do not deviate from your route for meals or other purposes unless
authorized by your manager or if local policies concerning handling
out of sequence mail permit minor deviations . . . Enter premises for
official duty only � except for authorized lunch periods."
At the conclusion of the complaint's investigation, the agency notified
complainant of his right to a hearing before an EEOC administrative
judge or an immediate FAD. The agency issued a FAD concluding that
complainant failed to establish a prima facie case of discrimination
based on race. This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
In this case, the agency indicated that it issued the LOW to complainant
for an unauthorized stop/deviation from his route. Complainant stated
that the agency's actual reason was discriminatory because similarly
situated persons outside of his protected classes committed comparable
infractions but did not receive comparable discipline. The record
revealed that C-1 disciplined two black males and two white males
with either suspension or LOW within 15 months of complainant's LOW.
The record also revealed that C-1 did not discipline any females within
a time period in close proximity to complainant's LOW. However, there
was no objective evidence that a female was observed behaving in such a
manner as to warrant disciplining. Accordingly, the complainant failed
to prove discrimination based on race or sex.
CONCLUSION
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's finding of no discrimination.
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 24, 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 The agency, through the EEO process for the complaint at issue,
acknowledged the basis of race only. The record revealed that complainant
indicated on several occasions that the agency acted adversely against
him because he was a black, male, union president. Consequently, the
bases of both race and sex are addressed herein. Complainant's union
activity is not addressed because nothing indicated that he raised any
protected issues in the grievance process. 29 C.F.R. � 1614.301.