01A12479
07-25-2002
James King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James King v. United States Postal Service
01A12479
July 25, 2002
.
James King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12479
Agency No. 4D-280-0011-00
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 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 Window/Distribution Clerk at Concord Post Office, Concord, North
Carolina facility. Complainant sought EEO counseling and subsequently
filed a formal complaints on December 14, 1999 and January 21, 2000<1>,
alleging that he was discriminated against on the basis of race (Black)
when:
(1) from October 17,1999, and ongoing, he was not allowed to perform
maintenance on the CBS (Carrier Sequence Bar Code Sorter) machine;
from September 1999, he was harassed by co-workers and from October 17,
1999, a manager allowed co-workers to follow complainant around the
building and slander his name;
on November 15, 1999, a manager allowed a casual employee to perform
preferential duties; and
on November 15, 1999, complainant became aware that he was going to be
reassigned to the Main Post Office.
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.
In its FAD, the agency concluded that complainant did not established a
prima facie case of race discrimination. Specifically, the agency noted
that complainant failed to cite any similarly situated individuals outside
of his protected group who were treated more favorably than himself,
under similar circumstances.
Regarding claim (1), the agency noted that complainant stated that
after receiving training on the maintenance of the CSBCS machine he
was not assigned duties that would allow him to use the training.
The agency alleged that complainant complained of pain in his back,
therefore, complainant was used on distribution to pick up his speed
and rest his back. The agency concluded that complainant failed to cite
any individuals who complained of back pain and were assigned duties to
perform maintenance on the CSBCS machine.
Regarding claim (2), the agency concluded that complainant failed to
prove a prima facie case of hostile environment harassment. Specifically,
the agency noted that complainant failed to demonstrate he was subjected
to unwelcome harassment; the harassment complained of was based on his
race; or that the harassment complained of affected a term or condition
of employment, and/or had the purpose of or affect of unreasonably
interfering with his work environment and/or creating an intimidating,
hostile, or offensive work environment. The agency noted that complainant
merely alleged that two employees told other employees that he was lazy,
and one of the employees followed him into the bathroom to see where
complainant was. The agency stated that complainant advised a manager
and that manager spoke with them about complainant's concern, and there
were no further incidents. Therefore, the agency concluded that there is
no evidence nor has complainant proffered any evidence of a continuing
pattern or series of harassing events. The agency concluded that there
is no concrete evidence that the alleged harassment was severe.
Regarding claim (3), the agency noted that complainant compared himself
with a Casual Employee, and that at the time of the instant matter,
complainant was a Part-Time Flexible Employee. The agency concluded
that complainant cannot be considered similarly situated to the named
comparison employee. The agency further concluded that complainant failed
to establish a prima facie case of race discrimination.
Regarding claim (4), the agency concluded that complainant failed to
cite any similarly situated individuals outside of his protected group
who were treated more favorably than himself, under similar circumstances.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the 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 reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s). Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason was pretextual--that is, it was not the true reason,
or the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253. However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
Even assuming arguendo that complainant established prima facie case
of discrimination on the basis of race, we conclude that the agency
articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the record reveals that complainant was allowed to perform
some maintenance work on the machines eleven times from September 2,
1999 through November 9, 1999, but complainant complained about pain
in his back and that he was placed in distribution. The record also
reveals that management did not show favoritism, but rather placed
individuals where the skills and abilities could be utilized best.
The record further reveals that complainant was reassigned to the Main
Office, because no one bid on the position and that the complainant,
who was the senior part-time flexible employee, was offered the job.
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. Chouteau
v. United States Postal Serv., EEOC Appeal No. 01973853 (Mar. 10, 2000).
Accordingly, we next examine whether complainant has presented sufficient
evidence to prove the agency's reasons are merely pretext for unlawful
discrimination. Complainant argued that he did receive CSBCS machine
training but was discriminated against by not being given the opportunity
to work on the machines, complainant argued that he was not allowed
to utilize the training. Complainant also argued that management gave
preference to a White employee (CW1) and that management let CW1 do
as he pleased. Finally, complainant argued that since he did not bid
on the job at the Main Post Office, he would have been placed at the
bottom of the part-time flexible list.
We find that complainant failed to show pretext. Complainant did not
rebut the agency's reason for its actions. For example, complainant
did not rebut that he had back pains, nor he was allowed to perform some
maintenance work on the machines.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998) (citation omitted). To establish a prima facie case of hostile
environment harassment, a complainant must show that: (1) he belongs to
a statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment. 29 C.F.R.� 160.
Regarding complainant's claim of harassment, we find that complainant
failed to established a prima facie case of hostile environment
harassment. We find that even if complainant's allegations are true,
there are not sufficiently severe or pervasive to alter complainant's
condition of employment.
Therefore, after a careful review of the record, and 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
July 25, 2002
__________________
Date
1These matters were a consolidation of agency cases nos. 4D-280-0011-00
and 4D-280-0073-00.