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