01a00503
04-24-2000
Gaither L. Brown, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gaither L. Brown, Jr., )
Complainant, )
) Appeal No. 01A00503
v. ) Agency No. 4F-907-0021-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
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.; and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
ISSUE PRESENTED
The issue presented is whether the agency correctly determined that
complainant failed to demonstrate by preponderant evidence that he was
discriminated against based on his race and physical disability.
BACKGROUND
The record reveals that, during the relevant time, complainant was
employed as a Letter Carrier, at the agency's Torrance Post Office
facility in Torrance, California. Complainant alleged that on October 16,
1998, he was replaced by a junior co-worker (Caucasian, on limited duty)
in his job assignment as a Special Delivery Messenger. Believing he
was a victim of discrimination on the bases of race (African American)
and physical disability (Flat Feet), complainant sought EEO counseling on
October 16, 1998. Subsequently, complainant filed a formal complaint on
December 24, 1998. At the conclusion of the investigation, the agency
sent complainant a letter outlining his appeal rights. Complainant
failed to make an election to exercise his right to request a hearing
or a decision without a hearing. Therefore, the agency issued its final
agency decision (FAD).
The FAD concluded that complainant failed to establish a prima facie
case of race and disability discrimination. Further, the FAD found
that the agency stated a legitimate, nondiscriminatory reason for its
action and that complainant failed to show that the agency's reason
was pretext for discrimination. Complainant appeals this decision.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In the present case, complainant alleged that the agency discriminated
against him based on race and disability when he was taken away from
his previous position as a Special Delivery Messenger and replaced
by a co-worker. 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 Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, 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 Ctr. 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. United States
Postal Serv. Bd. 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 Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant states a prima facie case of race and
disability discrimination, we turn to the agency to articulate legitimate,
nondiscriminatory reasons for its action. The record indicates that the
agency eliminated the Special Delivery Messenger craft. Therefore, the
agency argued that complainant's position as a Special Delivery Messenger
was eliminated and the co-worker did not replace him. Accordingly,
the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its action.
The burden returns to complainant to demonstrate that the agency's
reasoning was pretext for discrimination. Upon review of the record,
we find that complainant has failed to show that the co-worker replaced
him in his Special Delivery Messenger position and has failed to
demonstrate by preponderant evidence that the agency's reasoning was
pretext for discrimination. Accordingly, we find that agency's action
is not tantamount to discrimination.
CONCLUSION
Accordingly, after a careful review of the record, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1On 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.