01a54913
12-16-2005
Gary Miffin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Gary Miffin v. United States Postal Service
01A54913
December 16, 2005
.
Gary Miffin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A54913
Agency No. 4-H-335-0119-04
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that, during the relevant time, complainant was
employed as a Letter Carrier at the agency's St. Petersburg Post Office
in Florida. Complainant sought EEO counseling and subsequently filed
a formal complaint on May 27, 2004, alleging that he was discriminated
against on the bases of race (African-American), color (black), and
disability (hernia) when on March 4, 2004, he was issued a seven-day
no-time-off suspension.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant did not show that he
was discriminated against on the bases of race, color and/or disability.
Specifically, the agency found that complainant did not establish a
prima facie case of race or color discrimination. The agency noted
that the responsible management official had also issued discipline
to seven other employees; four Caucasians and three African-Americans.
The agency also found that complainant did not establish a prima facie
of disability discrimination. The agency noted that complainant
did not provide sufficient medical evidence that would indicate he
has an impairment that substantially limits a major life activity.
The FAD further concluded that the agency articulated a legitimate,
nondiscriminatory reason for issuing the suspension. In particular,
the FAD found that complainant deviated from his route while he was on
his thirty-minute lunch break.
On appeal, complainant raises no contentions. The agency did not file
a response.
Although the initial inquiry of discrimination in a discrimination
case usually focuses on whether complainant established a prima facie
case, following this order of analysis is unnecessary when the agency
articulated legitimate, nondiscriminatory reasons for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether complainant
established a prima facie case to whether he demonstrated by preponderance
of the evidence that the agency's reasons for its actions merely were
a pretext for discrimination or retaliation. Id.
The Commission agrees with the FAD's conclusion that complainant did
not establish that more likely than not, the agency's articulated reason
was a pretext to mask unlawful discriminatory animus. In reaching this
conclusion, we note that the record evidence indicates that other than
complainant's own assertions, there is no evidence that the agency's
action was based on any of his protected classes.
Under these circumstances, the Commission concludes that the agency's
issuance of a seven-day no-time-off suspension was not based on
discriminatory animus or retaliatory motive. Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, 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
December 16, 2005
__________________
Date
1 Because we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, we do not reach the
issue of whether complainant is a qualified individual with a disability.