Gregory L. Christmas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 10, 2008
0120082813 (E.E.O.C. Nov. 10, 2008)

0120082813

11-10-2008

Gregory L. Christmas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gregory L. Christmas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120082813

Agency No. 4A070023007

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 29, 2008 final decision concerning his equal

employment opportunity (EEO) complaint alleging 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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

At the time of the events at issue, complainant was employed by the

agency as a General Expediter at the Northern New Jersey Processing

and Distribution Center. In a complaint filed on December 8, 2007,

complainant alleged that the agency discriminated against him on the

bases of race (African-American), sex (male), religion (Muslim), color

(Black), age (58), and reprisal for prior protected EEO activity when:

1. He was issued a letter of warning (LOW) on August 14, 2007;

2. He was issued a 7 day suspension on September 14, 2007;

3. He was issued a 14 day suspension on September 19, 2007;

4. He was issued a notice of removal on November 19, 2007.

The agency accepted the complaint and conducted an investigation.

When complainant failed to request a hearing, the agency issued its final

decision based on the evidence of record, concluding no discrimination

or retaliation had occurred. It is from this decision that complainant

now appeals.

Management witnesses and documentary evidence indicate that complainant

was issued the letter of warning for being absent without leave (3

incidents), failure to be regular in attendance, and failure to properly

perform his assigned duties. Complainant had four unscheduled absences.

According to management witnesses, complainant was issued the

7-day suspension for being under the influence of an intoxicating

beverage/failure to follow instructions. Complainant's supervisor saw

him lying on the floor, putting labels on trays. The supervisor told

him to get up, but complainant did not do so. Another supervisor was

called and gave complainant a direct order to get up. It was then that

it was noticed that complainant smelled of alcohol and his eyes were

glassy. Complainant was escorted out of the building by police.

Management witnesses said that complainant received the 14-day suspension

for being "under the influence of an intoxicating beverage/behavior

and personal habits." According to statements, complainant was

inappropriately hugging a co-worker, and when told to stop did not do so.

Complainant became loud and slurred his speech. Again, he was found to

smell of alcohol and escorted from the building.

Finally, management witnesses stated that complainant was removed for

violent and/or threatening behavior. A supervisor saw him sleeping while

sitting before a case. When she woke complainant up, she said he became

agitated and pointed at her as if he had a gun, and said "I'm going to

get you." Complainant was alleged to have made the threat several times,

and the supervisor felt uncomfortable. The removal notice also included

charges of failure to follow instructions and failure to cooperate in

an investigation. Complainant was instructed to report to the agency to

explain his behavior regarding the threats. He did not show up.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that he was subjected to discrimination as alleged.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

After a review of the record including statements on appeal, the

Commission finds that complainant has not proven, by a preponderance of

the evidence, that the agency's proffered reasons for its actions were

a pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with the

Court 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

November 10, 2008

__________________

Date

2

0120082813

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120082813