01983018
08-07-2000
Kenneth L. Thomas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Southeast Area, Agency.
Kenneth L. Thomas v. United States Postal Service
01983018
August 7, 2000
.
Kenneth L. Thomas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Southeast Area,
Agency.
Appeal No. 01983018
Agency No. 1-H-324-2014-93
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.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). Complainant alleged that he was discriminated against on
the bases of race (Black) and color (Black) when on July 26, 1993,
he was placed in off-duty status.
BACKGROUND
During the relevant time, complainant was employed by the agency as a
Transitional Employee Clerk. On July 9, 1993, complainant and another
employee (CO-1) apparently became engaged in a confrontation in the
workplace. Complainant stated that CO-1 openly threatened him in front
of other employees. Complainant also stated that he was harassed and
challenged by CO-1 on more than one occasion. Thereafter, complainant
advised his supervisor and the Shop Steward that CO-1 was threatening him.
On the advice of the Shop Steward, complainant completed a sheriff's
report regarding the July 9, 1993 incident between himself and CO-1.
On July 12, 1993, CO-1 reported to the Human Resources Hotline that
complainant had physically assaulted him. Specifically, CO-1 alleged
that on July 2, 1993, complainant challenged him to fight and kicked him
in the shoulder while in the employee parking lot. On July 15, 1993,
CO-1 provided a statement regarding the alleged physical assault to the
Labor Relations Specialist (�Specialist�), who was instructed to pursue
the matter.
On July 15, 1993, the Specialist referred the matter involving the
July 2, 1993 physical assault to the U.S. Postal Inspection Service.
The Specialist also prepared a Letter of Instruction to the Tour
Administrator advising him that, on July 16, 1993, complainant should
be placed in off-duty status without pay pending completion of the
investigation of CO-1's allegation. The Specialist further instructed
that complainant should be interviewed on July 16, 1993, and then
instructed not to report to duty until notified.
Believing the agency had committed unlawful discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on August
31, 1993. In essence, complainant contended that while he (Black
individual) was placed in off-duty status without pay, CO-1 (White
individual) remained in his position. The agency accepted the complaint
for processing, and at the conclusion of the investigation, complainant
was granted thirty days to either request a hearing before an EEOC
Administrative Judge or receive a FAD from the agency. After failing to
respond within the appropriate time frame, the agency, on September 21,
1994, issued its FAD finding no discrimination. Complainant thereafter
appealed the FAD to this Commission.
On August 15, 1996, we issued a decision finding that the agency
failed to conduct a complete investigation of the issue in question.
Specifically, we found that while the Specialist indicated that she
routinely recommended suspensions in similar situations, the record
contained no evidence concerning: (1) the agency's routine practice
in similar situations; (2) the agency's regulations and/or policies
regarding suspending employees; and (3) the outcome of the U.S. Postal
Inspection Service's official investigation of the July 9, 1993 of the
incident. As a result, we ordered the agency to conduct a supplementary
EEO investigation and after the completion of the investigation, provide
complainant with his rights as to a hearing or another FAD. The agency
completed the supplementary investigation on November 15, 1996, and
accordingly advised complainant of his rights regarding the election
of a hearing or a FAD. After complainant withdrew his hearing request,
the agency issued its second FAD finding no discrimination.
The FAD concluded that complainant failed to establish a prima facie case
of race discrimination because he presented no evidence to show that
similarly situated individuals not in his protected group were treated
differently under similar circumstances. The FAD further stated that,
even had complainant established a prima facie of discrimination, the
agency articulated a legitimate, nondiscriminatory reason for its action,
namely, that the Specialist explained that placing complainant in off-duty
status was appropriate under the circumstances. Finally, FAD concluded
that complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
ANALYSIS
After a careful review of the record and apply the standards set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Commission
finds that complainant failed to demonstrate that the agency's action
was motivated by unlawful racial discrimination. While we disagree with
the FAD and find that complainant established a prima facie case of race
discrimination,<2> we agree that the agency articulated a legitimate,
nondiscriminatory reason for placing complainant in off-duty status
without pay (the commission of a physical assault on a fellow employee).
We note that the U.S. Postal Inspection Service's official investigation
found that the evidence supported that complainant had physically
assaulted CO-1 on July 2, 1993. We also note that the record, which
included affidavits from several witnesses, does not support complainant's
assertion that CO-1 threatened him on July 9, 1993. After reviewing
the initial investigation and the supplemental investigation, which
set forth the agency's policies for placing an employee in off-duty
status and provided information on other employees placed off-duty,
we find that the evidence does not demonstrate that the agency's
decision to place complainant in off-duty status was a product of race
discrimination. Therefore, it is decision of the Commission to AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 7, 2000
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant established a prima facie case by demonstrating that he
(Black) was placed in off-duty status while CO-1 (White), also involved
in the altercation, was not similarly placed in off-duty status.