01A02385
06-12-2002
Michael Chavez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Michael Chavez v. United States Postal Service
01A02385
June 12, 2002
.
Michael Chavez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A02385
Agency No. 4F-945-0126-99
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Letter carrier at the agency's El Sobrante, California
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 9, 1999, alleging that he was discriminated
against on the basis of race (Hispanic) when:
(1) he was placed on administrative leave on May 18, 1999; (2) on May
27, 1999, he was given a Just Cause Interview resulting in a Notice
of Suspension for Failure to Follow Instructions; and (3) on June 11,
1999, he was given a Just Cause Interview resulting in a Seven Calendar
Days Suspension for Unacceptable Conduct (Rude and Disrespectful to a
Co-Worker/Challenging a Co-Worker to a Physical Altercation).
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case in that, although he is a member of a protected group,
he did not establish that he was treated differently than similarly
situated individuals outside of his protected class. Even assuming that
complainant had established a prima facie case, the agency also found
that it had articulated a legitimate, non-discriminatory reason for its
actions which complainant failed to show was pretextual.
Complainant raises no new contentions on appeal and the agency requests
that we affirm its FAD.
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 she 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
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The established 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, as here,
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 action was motivated by discrimination. U.S. Postal Service
Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Thus, assuming
the absence of comparators, complainant must point to other acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. See Quinn v. Tennessee Valley Authority, EEOC Appeal No. 01956441
(January 30, 1998).
In support of its conclusion that the complainant failed to establish
a prima facie case, the agency stated that there were no comparable
employees at complainant's facility because there were no individuals
who were disciplined for engaging in similar misconduct. However, the
agency did produce data which demonstrated that individuals both within
and outside of complainant's protected class were disciplined for various
kinds of infractions. Thus, although we agree with the agency's conclusion
that the record fails to show that employees outside of the complainant's
protected group were treated more favorably even though their conduct
was similar to complainant's, we also we also find that the agency has
articulated a legitimate, nondiscriminatory reason for its action.
Management officials testified that complainant was placed on
administrative leave because he had threatened another employee and that
complainant was notified by certified letter that he was prohibited from
entering the El Sobrante facility. The only exception was that complainant
could enter the facility to pick up his paycheck. Nevertheless,
complainant ignored this instruction, entered the facility and
threatened a co-worker. In accordance with the Collective Bargaining
agreement, complainant was placed on emergency suspension. Following an
investigation, management determined that complainant was the aggressor
and that he had, in fact, threatened another employee. As a result of
this conduct, complainant was suspended for seven days. Thus, we find
substantial evidence on the record to support the agency's legitimate,
nondiscriminatory reason for disciplining the complainant.
Significantly, however, other than complainant's assertion that he has
been harassed, there is no evidence on the record to suggest that the
action taken by the agency against the complainant was in any manner
related to his race, nor is there any evidence to link, either directly
or indirectly, the suspension to complainant's protected status. Thus,
we also find that complainant failed to present evidence that more
likely than not, the agency's articulated reason for its action was a
pretext for discrimination. Thus, although the Commission agrees with
the agency that complainant has not established a prima facie case of
race discrimination, we also find that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
June 12, 2002
__________________
Date