01985669
08-02-2002
Eugene M. Carpenter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene M. Carpenter v. United States Postal Service
01985669
08-02-02
.
Eugene M. Carpenter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01985669
Agency No. 4C-170-1027-96
Hearing No. 170-97-8230X
DECISION
On July 6, 1998, Eugene M. Carpenter (complainant) filed a timely
appeal from the June 3, 1998, final action of the United States Postal
Service concerning a 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., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c).<1> The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant alleged discrimination based on disability (depression), sex,
and reprisal when he was denied 204-B training opportunities, denied
a transfer, and denied annual leave for a vacation in June-July 1996.
An EEOC Administrative Judge (AJ) issued a decision without a hearing,
finding that the agency did not discriminate against complainant.
In particular, relying on complainant's affidavit, the AJ found that
the agency denied complainant 204-B assignments due to absences not
related to his impairment. The agency adopted the AJ's decision, and
this appeal followed.
204-B Training Opportunities
Complainant stated that he applied for 204-B training in November 1993
but was never given instruction. He inquired about training on July 2,
1996, and was told that his attendance must improve before he could
be afforded 204-B training. An agency manager stated that because of
his poor attendance, complainant was not reliable and did not set a
good example or demonstrate leadership for other employees, qualities
the agency sought for 204-B supervisory candidates. The record shows
that the employees who worked in 204-B positions during this period had
significantly less absenteeism than complainant.
Transfer
Complainant stated that he had applied for a transfer to the Eastern
Shore, Maryland, area but was told that a job was no longer available.
He speculated that the reason he was not accepted for transfer by the
facility was due to his leave record, which is routinely sent to the
transferring facility along with other employee records. The case
record contains a letter and evaluation from his supervisor in support
of complainant's transfer.
Denied Annual Leave/Vacation
Complainant stated that when summer vacations were being chosen, he was
not given an opportunity to select a vacation week. Agency managers
explained that because of competition for summer vacations, employees
with sufficient annual leave select vacation weeks in order of seniority;
however, because complainant had no annual leave, he was not afforded
an opportunity to select a week.
The only medical information in the record is a Certification for FMLA
leave from complainant's mental health care provider, a licensed social
worker (LSW), dated March 25, 1996, which identified complainant's
diagnosis as "major depressive disorder, single episode" and stated
that the probable duration of his condition was six months to one year.
She described complainant as having "difficulty functioning at times."
In a letter dated August 7, 1996, LSW stated that complainant was
experiencing an increase in his "depressive and panic symptoms."
Complainant has alleged discrimination based on his disability,<2>
sex, and reprisal. In general, claims of discrimination alleging
disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 140 (2000).
Complainant 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). Next,
the agency offers rebuttal to complainant's inference of discrimination
by articulating a legitimate, nondiscriminatory reason for its action.
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 burden to persuade the fact finder by a preponderance of
the evidence that the reasons offered by the agency were not the true
reasons for its actions but rather were a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency
articulates a legitimate, nondiscriminatory reason for its actions, we
may presume a prima facie case and proceed directly to the third step
to determine whether complainant has demonstrated pretext. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of analysis of his claim, we will assume without deciding
that complainant is a person with a disability and proceed to the third
step of the McDonnell Douglas analysis. First, with regard to 204-B
training opportunities, the agency stated that complainant was frequently
absent and thus not reliable; he could not set a good example for other
employees; and the employees who worked in 204-B positions had much less
absenteeism than complainant. With regard to his request for transfer,
the agency sent his records to the transferring facility and filed a
letter in support. As to his denial of a summer vacation selection,
the agency stated that complainant had no annual leave. We find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The ultimate burden of persuasion now returns to the complainant to
demonstrate by preponderant evidence that the reasons given by the agency
for its actions were pretextual or a sham or disguise for discrimination.
The complainant must show that the agency's actions were more likely than
not motivated by discrimination, that is, that the actions were influenced
by legally impermissible considerations, i.e., his disability, sex,
or reprisal. Absent a showing that the agency's articulated reason was
used as a tool to discriminate against him, complainant cannot prevail.
With regard to his claims about his transfer and summer vacation, we find
that complainant has not demonstrated that the agency's reasons were
not true or that they were based on discriminatory factors. As to the
transfer, complainant acknowledged that employee records are routinely
sent to the transferring facility. Also, concerning his denial of
summer vacation, complainant did not deny that he lacked annual leave
or otherwise undermine the agency's explanation.
With regard to the 204-B training opportunities, the agency pointed to
complainant's attendance, explaining that complainant was not reliable,
could not set a good example, and could not demonstrate leadership for
other employees. After a thorough review of the record and all arguments
made on appeal, we find that complainant has not demonstrated that the
agency's reasons were not true or that its actions were a pretext for
discrimination. Complainant does not show nor does the record reveal
that he was treated less favorably than any other employee who had a
similar absenteeism record.
CONCLUSION
Accordingly, the agency's final action is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08-02-02_____________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2Since the denial of the 204-B assignment is unrelated to his disability,
his claim is one of disparate treatment, not reasonable accommodation.
See complainant's affidavit.