Jimmie D. Gordon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
01a45532 (E.E.O.C. Mar. 18, 2005)

01a45532

03-18-2005

Jimmie D. Gordon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jimmie D. Gordon v. United States Postal Service

01A45532

March 18, 2005

.

Jimmie D. Gordon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45532

Agency No. 4G-700-0259-02

DECISION

On October 8, 2002, complainant, a Postmaster, EAS-24, filed a formal

EEO complaint in which he claimed that the agency discriminated against

him on the bases of his race (Native American), sex (male), age (68),

and in reprisal for his previous EEO activity under Title VII and the

Age Discrimination in Employment Act when: (1) on June 14, 2002, he

was placed on a success improvement plan with unrealistic goals; and

(2) he was treated less favorably than other Postmasters by receiving

proportionately fewer work hours for his facility and by not having a work

force complement at a proper level for his facility. Complainant claimed

that these actions constituted harassment.

The agency accepted the complaint for investigation. Subsequent to the

investigation, complainant was notified that he had the right to request

either a hearing before an EEOC Administrative Judge or an agency final

action without a hearing. Complainant requested a hearing before an

EEOC Administrative Judge. By notice dated June 8, 2004, complainant

submitted a notice of withdrawal of request for hearing wherein he

requested that the agency issue a final action.

On July 19, 2004, the agency issued a final action wherein it

determined that no discrimination occurred. The agency stated that

complainant failed to establish a prima facie case with respect to the

bases of age and sex. According to the agency, complainant failed to

identify employees who were treated more favorably than him. The agency

stated that a male comparative in complainant's age group and a female

comparative in complainant's age group also received success improvement

plans. The agency noted that the other comparative cited by complainant

was not similarly situated since she worked for a different supervisor.

Assuming arguendo that complainant had established a prima facie case

on each of the alleged bases, the agency determined that it articulated

legitimate, nondiscriminatory reasons for its actions. The agency

noted that the Manager stated that complainant was placed on the success

improvement plan due to unsuccessful achievement of established goals for

his office. According to the Manager, complainant's office was failing

to achieve goals in carrier work hours, clerk work hours, carrier total

overtime and percentages in sick leave usage. The Manager stated that

complainant's office received equal work hour reductions comparable to

other offices throughout the district. The Manager further stated that

the work force complement was established to match workload to work hours.

With regard to complainant's claim of reprisal, the agency stated that

complainant failed to provide evidence to show a causal connection

between his prior EEO activity and the action taken. The agency stated

that complainant's reliance on the fact that the Manager issued the

success improvement plan one week before complainant was to testify at

an EEO hearing does not by itself satisfy complainant's burden of proof.

The agency determined that complainant failed to show that its articulated

reasons were pretext for illegal discrimination. Thereafter, complainant

filed the instant appeal.

In response, the agency asserts that no similarly situated individuals

outside of complainant's protected classes were treated more favorably

than him with regard to each of the incidents at issue. The agency notes

that the other Postmasters who received success improvement plans received

them on the same date as complainant to reflect the office performance

prior to that date. The agency further asserts that complainant did

not show that he suffered an adverse action. The agency notes that no

evidence was presented that the success improvement plan was disciplinary

in nature or that it was placed in complainant's personnel file.

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a case claiming

discrimination is a three-step process as set forth in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.

See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases); see also Loeb

v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age

was a determinative factor, in the sense that �but for� age, complainant

would not have been subject to the adverse action at issue).

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).

Harassment is actionable only if the incidents to which complainant

has been subjected were �sufficiently severe or pervasive to alter

the conditions of [complainant's] employment and create an abusive

working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(August 14, 1998). 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. Humphrey v. United States Postal Service, EEOC Appeal

No. 01965238 (October 16, 1998).

For purposes of analysis, we will assume, arguendo, that complainant

has established a prima facie case of sex, age, reprisal, and race

discrimination. Next, we shall consider whether the agency articulated

legitimate, nondiscriminatory reasons for its actions. The agency stated

with regard to the issuance of a success improvement plan to complainant

that he was placed on the plan due to unsuccessful achievement of

established goals for his office. The agency asserted that complainant's

office was failing to achieve goals in carrier work hours, clerk work

hours, carrier total overtime and percentages in sick leave usage.

The agency explained with regard to the work hours for complainant's

office that his office received equal work hour reductions comparable to

other offices throughout the district. As for the workforce complement

in complainant's office, the agency stated that the office complement was

established to match the office workload to work hours. We find that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

We find that complainant has not established that the agency's stated

reasons were pretext intended to mask discriminatory intent. Complainant

claimed that reprisal occurred in light of the fact that his success

improvement plan was issued just one week before he was to testify at

an EEOC Hearing. We find this argument is not persuasive given that two

of the comparative employees cited by complainant also received success

improvement plans at that time. Complainant has not shown that he and

his office were treated differently than similarly situated Postmasters

and their offices. Complainant has not established that his office was

more proficient in the relevant areas than the agency indicated. We find

that complainant has not shown, by a preponderance of the evidence,

that the agency's actions were based on discriminatory intent rather

than the reasons proffered by the agency.

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

action finding no discrimination, because a preponderance of the record

evidence does not establish that complainant was discriminated against

based on his sex, race, age, or in reprisal for protected activity.

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

March 18, 2005

__________________

Date