01A33281_r
08-07-2003
Felix Cortijo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felix Cortijo v. United States Postal Service
01A33281
August 7, 2003
.
Felix Cortijo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33281
Agency No. 4A-006-0064-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The record reveals that during the relevant time, complainant was
employed as a PS Level 5, Part Time Regular Distribution Window Clerk
at the agency's Old San Juan Station in San Juan, Puerto Rico.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 10, 2001, alleging that he was discriminated against
on the bases of race (Latin), national origin (Puerto Rican), sex (male),
and color (black) when on June 5, 2001, he was given notice that his
position at Old San Juan Station was abolished and he was to report to
Plaza Las Americas Station with different work hours and rest days.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
Without addressing the merits of complainant's prima facie case, the
final agency decision concluded that the agency articulated legitimate,
non-discriminatory reasons for its actions, namely, that the reason
complainant was reassigned to another station was because his position
was abolished. Further, the agency found that complainant failed to
present any evidence which demonstrated that the agency's articulated
reasons for its actions were 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 Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its employment actions, which we determine
was not persuasively rebutted by complainant. Specifically, the agency
presented evidence supporting a determination that it decided to eliminate
positions, including complainant's position, due to operational needs.
The record reflects that the agency experienced dramatic reduction on
the Business Reply accounts, and as a consequence, decided to abolish
complainant's position. The record contains an affidavit from the
Manager, Customer Services. Therein, the Manager stated that the part
time positions of complainant and a co-worker at the Old San Juan Station
were abolished due to operational needs and as the final outcome of the
workload evaluation. The Manager further stated that complainant was
assigned to the Plaza Las Americas Station because of his qualifications
as a Window Clerk, while a co-worker was assigned to the Main Office
Window Service Unit because he had not receive Window Clerk training
and therefore would not qualify to work as a Window Clerk at the Plaza
Las Americas Station.
Complainant has failed to rebut the agency's legitimate, nondiscriminatory
reason. Moreover, complainant has not demonstrated that the agency's
articulated reasons for the abolishment of his position and reassignment
with different work hours and rest days were a pretext for discrimination.
Therefore, after a careful review of the record, we AFFIRM the FAD.
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
August 7, 2003
__________________
Date