01a55393_r
12-16-2005
Richard M. Maher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard M. Maher v. United States Postal Service
01A55393
December 16, 2005
.
Richard M. Maher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55393
Agency No. 1G-781-0051-04
DECISION
Complainant filed an appeal with this Commission from the June 24,
2005 agency decision finding no discrimination.
In his complaint, complainant alleged that the agency discriminated
against him on the bases of sex (male) and color (white) when on April
7, 2004, he was issued a notice of proposed removal for unacceptable
attendance which was reduced to a 14-day suspension.
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 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 its decision.
In its decision, the agency concluded that complainant failed to establish
a prima facie case of sex or color discrimination, noting that complainant
failed to satisfy all of the elements required for a prima facie case.
The agency specifically noted that complainant failed to show that
there were employees not of his sex or color with similar attendance
records who were not disciplined. The agency noted further that of
the five employees who received notices of removal in 2003 and 2004,
three were brown and three were females. The agency also noted that
the female identified by complainant as being treated differently was
not similarly situated to complainant because her absences were covered
by the Family Medical Leave Act and complainant's absences were not.
The agency further concluded that the agency had articulated legitimate,
nondiscriminatory reasons for its actions and that complainant had failed
to show that the agency's reasons were pretextual. Specifically, the
agency noted that complainant was absent from work, that he had been
put on notice of unacceptable attendance on prior occasions and had
received discipline for his attendance, including a letter of warning,
and seven and 14-day suspensions.
To establish a prima facie case of discrimination, a complainant must show
the following: (1) complainant was a member of the protected class; (2) an
adverse action was taken against complainant; (3) a causal relationship
existed between complainant's membership in the protected class and
the adverse action; and (4) other employees outside of complainant's
protected class were treated differently.
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 a complainant to prevail, he or 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). The burden of persuasion that the agency discriminated against
complainant always remains with complainant.
As an initial matter, the Commission notes that 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 its action, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis to the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).
In the instant case, we find that the agency has articulated a legitimate,
nondiscriminatory reason for issuing discipline, i.e., complainant's
continued unacceptable attendance. The notice of removal reflects that
complainant had unscheduled absences during four pay periods and that
complainant had been issued discipline previously for attendance problems.
The notice of removal also reflects that complainant's failure to meet
attendance requirements was contrary to rules and regulations in the
agency's Employee and Labor Relations Manual. The notice of removal
reflects that complainant's unscheduled absences imposed burdens on his
co-workers and impeded supervisors in scheduling work. The Commission
further finds that complainant failed to show by a preponderance of
the evidence that the agency's disciplinary action was motivated by
discriminatory animus. Accordingly, the agency's decision finding no
discrimination is AFFIRMED.
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
December 16, 2005
__________________
Date