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