01990345
08-24-1999
Lindsay Greene, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lindsay Greene v. United States Postal Service
01990345
August 24, 1999
Lindsay Greene, )
Appellant, )
)
)
v. ) Appeal No. 01990345
) Agency No. 4A-100-0029-98
) Hearing No. 160-98-8544X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission 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,
as amended, 42 U.S.C. �2000e et seq. The final agency decision was
dated September 30, 1998. The appeal was postmarked October 16, 1998.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency discriminated against
appellant when: (1) it issued him a fourteen-day suspension for creating a
disturbance on the work floor, failing to follow instructions, disrespect
to a supervisor and leaving his assignment without permission; and (2)
it issued a letter of warning in lieu of a fourteen-day suspension for
failing to be regular in attendance.
BACKGROUND
Appellant is employed as a letter carrier with the New York, New York Post
Office. The record indicates that on October 3, 1997, appellant initiated
contact with an EEO Counselor regarding his complaint. On October
30, 1997, appellant filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the basis of race (black)
when on September 29, 1997, he was given a fourteen-day suspension, and
when on October 15, 1997, he was issued a letter of warning in lieu of
a fourteen-day suspension. The agency investigated the complaint and
appellant subsequently requested a hearing from an EEOC Administrative
judge (AJ). The AJ issued a decision without a hearing, recommending
a finding of no discrimination on September 25, 1998. Specifically,
the AJ found that appellant had not met his burden at the prima facie
stage. On September 30, 1998, the agency issued a final decision adopting
the AJ's finding of no discrimination. Appellant did not show that
there was a similarly situated employee that was treated differently.
Issue (1)
The record indicates that on September 19, 1997, a supervisor overheard
a conversation taking place between appellant and other workers on the
work floor. The supervisor heard appellant use the word "scumbag".
Appellant was then told that the use of that type of language was not
acceptable on the work floor. Appellant then questioned the supervisor in
regards to using the word "scumbag" and stated that he would use the word
when he wanted to. The supervisor later requested that appellant report
to the second floor office. Appellant did not respond. The supervisor
then went to appellant and asked why appellant did not respond to the
page. Appellant stated that he did not hear the page but that he would
not speak with the supervisor unless a union steward was available.
The supervisor states that after being told that there was no union
steward available at that time, appellant raised his shirt and turned
his back to the supervisor and stated "Do what you will."
On a separate occasion (September 22, 1997) the Complainant was charged
by a different supervisor with leaving his route at the end of his tour
despite the fact that overtime was mandatory due to the heavy volume
of mail. Based on this incident, the prior incident and appellant's
disciplinary history (seven disciplinary actions) appellant was issued
a fourteen-day suspension. By letter dated December 1, 1997, appellant
was notified that the suspension was being modified to a thirteen-day
suspension due to a grievance settlement.
Appellant contends that another employee, who was similarly situated,
had created a disturbance on the work floor and no action was taken
against him. Management, however, states that the other employee
did follow instructions after being directed to follow instructions
a second time. Evidence of other employees who had been disciplined
supports the agency's position.
Issue (2)
Appellant was issued the letter of warning in lieu of a fourteen-day
suspension for not being regular in attendance on three occasions for
a total of seven days and due to his disciplinary history. Appellate
states that this charge is misleading and untrue but gives no evidence
in support of his statement.
As a remedy for his complaint, appellant asks for a letter from management
acknowledging that they were in error, all charges from his personnel
file that can be deemed as retaliatory or conspired be dropped, and
punitive damages.
ANALYSIS AND FINDINGS
The agency contends that appellant's statement on appeal should be
disregarded or dismissed because appellant has not served the agency
with his appeal or statement in support of the appeal, as required by 29
C.F.R. ��1614.403(b) and 403(d). However, because the statement on appeal
only speaks to matters already discussed in the investigation, formal
complaint or counselor's complaint, we find that the agency has not been
prejudiced by appellant's procedural error. See Holderman v. United States
Department of Agriculture, EEOC Request No. 05930875 (June 2, 1994).
The burden of proof in discrimination cases is generally allocated
according to the standard established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). Appellant bears the initial burden of
demonstrating that there is some substance to his or her allegation of
discrimination. To meet this burden, appellant must establish a prima
facie case of discrimination by demonstrating, by a preponderance of
the evidence, that he or she was subjected to an adverse employment
action under circumstances which, if not rebutted or explained, raise
an inference of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Once appellant has
established a prima facie case, the burden then shifts to the agency to
rebut the presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for its actions. Burdine, 450 U.S. at 254. If
the agency is successful, the burden shifts back to appellant to
prove that the agency's articulated reasons were merely a pretext for
discrimination.
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged;
but regardless of the specific action at issue, appellant may establish
a prima facie case by demonstrating that he is a member of the protected
group, that he is similarly situated to employees outside of his protected
group, and that he was treated differently than those employees. Potter
v. Goodwill Indus. of Cleveland, Inc., 518 F.2d 864, 865 (6th Cir. 1975).
The AJ found that appellant failed to establish a prima facie case
of discrimination on the grounds that he failed to show that another
employee, not of his protected group, who was similarly situated was
treated differently under the same circumstances.<1> The agency adopted
that finding within its final agency decision. In order to be considered
"similarly situated," employees must be similarly situated in all relevant
aspects of employment. Smith v. Monsanto Chemical Co., 770 F.2d 719, 723
(8th Cir. 1985). Appellant cites one individual with regard to allegation
(1) as being similarly situated. The AJ found that the cited individual
did comply with the supervisor's instructions when told a second time,
while appellant did not do so. In regard to allegation (2), appellant
has not alleged that he was treated differently than a similarly situated
employee. Thus, we find no evidence that would cause us to reverse the
decision of the agency that appellant has failed to show that the cited
employee was similarly situated.
Assuming arguendo that appellant can establish a prima facie case
of race discrimination, we find that the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). In this regard,
the agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. In the instant case, the agency
states that appellant was given the fourteen day suspension and the
letter of warning due to his conduct and his past disciplinary history.
We thus find that the agency has met its burden of production with
regards to both issues (1) and (2).
Appellant now has the burden of establishing that the agency's articulated
reason was mere pretext for discrimination. See Burdine, and accord
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). We find nothing
in the record which indicates that the agency's articulated reasons
are pretextual. Thus, the decision of the agency is affirmed.
CONCLUSION
Accordingly, the agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 24, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that comparative evidence is only one method of
establishing a prima facie case of discrimination, and that there are
other ways of making such a showing. See O'Connor v. Consolidated Coin
Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor
v. Consolidated Coin Caters Corp., EEOC Notice 915.002 (September 18,
1996).