Jasvir S. Khosa, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01A15136_r (E.E.O.C. Sep. 12, 2002)

01A15136_r

09-12-2002

Jasvir S. Khosa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jasvir S. Khosa v. United States Postal Service

01A15136

September 12, 2002

.

Jasvir S. Khosa,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A15136

Agency No. 1F-937-0054-00

DECISION

Complainant filed a complaint in which he claimed that the agency

discriminated against him on the bases of his sex (male), race (Indian),

national origin (India), and religion (Sikh) when:

1. On July 15, 2000, he was denied day off overtime.

2. On July 26, 2000, he was forced to take a late lunch and was insulted

in front of others.

3. On July 26, 2000, his schedule was changed to a less preferred

assignment.

4. On August 4, 2000, he was given leave without pay instead of scheduled

annual leave.

The agency accepted the complaint for investigation. Subsequent to

the investigation, the agency issued a decision dated July 25, 2001,

wherein it determined that complainant was not discriminated against with

respect to each of the aforementioned claims. The agency determined that

complainant failed to establish a prima facie case of race, religion,

sex, and national origin discrimination because he did not show that he

was treated differently than similarly situated individuals not within

his class. The agency further determined that it articulated legitimate,

non-discriminatory reasons for its actions, which complainant failed

to show were pretextual. The agency stated that no other mailhandlers

were scheduled for overtime on July 15, 2000. The agency determined

that complainant was not forced to take a late lunch on July 26, 2000.

According to the agency, complainant knew that the BMC needed to

be unloaded before he could take a break, and that if complainant's

supervisor raised his voice at complainant, it was because complainant

did not perform the duties that were required of him. With regard to

complainant's final claim, the agency determined that complainant was

issued leave without pay because there was no leave entered for him.

However, the agency stated that a pay adjustment was subsequently prepared

and the complainant received annual leave.

On appeal, complainant argues that the actions taken against him cannot

be construed as legitimate business decisions. Complainant submits a

letter from an individual who states that as an acting supervisor on

July 26, 2000, he assigned complainant to South End operation pursuant

to complainant's request.

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 Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000).

This 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 Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900150 (June 28, 1990).

Assuming arguendo, that complainant established a prima facie case

of race, national origin, religion, and sex discrimination, we shall

examine the reasons articulated by the agency for the actions at issue.

Complainant's supervisor stated with regard to complainant not receiving

day off overtime on July 15, 2000, that complainant did not have the

necessary skills needed on that day. According to the supervisor, no

mailhandlers were needed to work overtime on that day. The supervisor

stated that complainant was not forced to take a late lunch. A review

of complainant's clock rings for July 26, 2000, reveals that complainant

took lunch at a time that can not be considered late in comparison with

his clock rings for that general period in July 2000. The supervisor

explained that if he raised his voice at complainant on July 26, 2000, it

was because complainant had not unloaded the BMC before he took a break.

The supervisor stated that complainant has been a mailhandler for years

and that he knows he must unload the BMC before he can take a break.

The supervisor further stated that complainant's reporting time was not

changed from 3:00 pm to 4:00 pm as complainant's normal reporting time

has been 4:00 pm. With regard to complainant being issued leave without

pay, the supervisor explained that there was no approved annual leave

for the day in question as there was no original PS Form 3971 on file.

The supervisor stated that a pay adjustment was subsequently made and

complainant was paid annual leave. We find that the agency articulated

legitimate, nondiscriminatory reasons for complainant not receiving day

off overtime, for complainant being spoken to in a harsh manner in the

break room, and for complainant initially being issued leave without pay.

The agency also articulated a credible explanation refuting complainant's

claims that he had been required to take a late lunch and that he received

a less preferred schedule.

A review of the record reveals that complainant has not established that

the agency's reasons for denying him overtime, speaking harshly to him in

the break room, and issuing him leave without pay were pretext intended

to mask discriminatory intent. Complainant has not refuted the agency's

position that on July 26, 2000, he was neither required to take a late

lunch nor did he receive a less preferred schedule. With regard to the

latter issue, we note that complainant submitted a letter from an acting

supervisor stating that complainant was assigned to South End operation

pursuant to complainant's request. In his complaint, complainant stated

that his supervisor forced the acting supervisor to give him the less

preferred assignment. However, the letter from the acting supervisor

establishes that the reassignment was made based on complainant's request.

We find that complainant has failed to show that the alleged actions

were motivated by race, national origin, religion, or sex discrimination.

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

order, because a preponderance of the record evidence does not establish

that discrimination occurred.

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

September 12, 2002

__________________

Date