0120082645
11-13-2008
Ronnie A. Bell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronnie A. Bell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082645
Agency No. 1K-276-0039-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 26, 2008 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Mail Processing
Clerk, PS-05, at the agency's Raleigh Processing & Distribution Center
in Raleigh, North Carolina.
On October 29, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (African-American) and in reprisal for prior EEO
activity when:
(1) since June 8, 2007, he had been denied opportunities to work
higher-level detail assignments; and
(2) on September 28, 2007, he was placed on Emergency Placement without
pay.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond. On April 26, 2008, the agency issued the instant final
decision.
In its April 26, 2008 final decision, the agency dismissed claim (1)
for raising the same claim that is pending before or has been decided by
the agency or the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency stated that complainant raised the same claim
in a prior EEO complaint, identified as Agency No. 1C-276-0012-06.
The agency dismissed claim (2) on the grounds of mootness pursuant to 29
C.F.R. � 1614.107(a)(5). The agency stated that because the Emergency
Placement was rescinded through the grievance process, any alleged
discrimination would be unlikely to recur and that the effects of the
alleged discrimination had been eradicated.
The agency also addressed the merits of the complaint and found no
discrimination. Specifically, the agency found that complainant did
not establish a prima facie case of race and reprisal discrimination.
The agency further found that assuming complainant established a prima
facie case of race and reprisal discrimination, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Regarding claim (1), the Manager, Distribution Operations (MDO) stated
that the expeditor position that complainant was referring to was not
vacant, but rather was occupied by an identified employee (E1) who was out
of work for medical reasons. MDO further stated that E1 "has not retired
or resigned and his position cannot be reposted until such time he is no
longer employed by the USPS or he bids to another position." MDO stated
that no employee "will be denied an opportunity for a higher-level
detail based on race or sex. Decisions to detail employees to higher
level positions are made based on [the] employee's ability to perform
the duties of the position and the ability of management to release
the person from their current position." Moreover, MDO stated that
complainant "has never requested a detail to a higher-level position.
Therefore to my knowledge he has never been denied."
Regarding claim (2), MDO stated that on September 28, 2007, she placed
complainant on Emergency Placement without pay "due to his alleged
threatening comments made to a co-worker and his statement made to his
supervisor." MDO stated that according to complainant's supervisor,
complainant approached her to inform her that he was not satisfied with
the way she handled a situation that had occurred earlier in the tour
between his spouse and another employee (E2). MDO stated that according
to S1, complainant informed her that he "would take care of the situation
himself. Within the next hour, a witness saw him yelling at the employee
who had been involved in the disagreement with his spouse. The other
employee involved sought out management when [Complainant] approached
him and made unprofessional comments." MDO stated that E2 came to her
office letting her know that he felt threatened by complainant's actions.
MDO stated that all parties involved were asked to write a statement
but complainant refused to write a statement. MDO stated, "The issue
was discussed with union representatives. [Complainant] was placed on
emergency placement (Article 16.7) as a precautionary measure to ensure
no further outbursts occurred. The APWI agreed that not all employees
needed to be suspended."
With respect to complainant's allegation that during the interview on
September 28, 2007, the MDO "spliced in" conversations pertaining to an
earlier sexual harassment incident to the incident involving him and E2,
the MDO stated she does not recall mentioning the interview concerning
sexual harassment. MDO stated, "I distinctly recall [complainant] telling
me 'That woman [complainant's wife] means more to me than anything in the
world and I will do whatever I have to do to protect her." MDO stated
that complainant "was very adamant about his feelings on September 28,
2007, but nothing was ever discussed about the earlier sexual harassment
investigation." Furthermore, MDO stated that complainant's race and
prior protected activity were not factors in her determination to place
him on Emergency Placement without pay.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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).
This 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 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. See U.S. 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); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not prove,
by a preponderance of the evidence, were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
Because we affirm the agency's final decision finding no discrimination
concerning claims (1) - (2) for the reasons stated herein, we find it
unnecessary to address the alternative disposition of these claims on
procedural grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
November 13, 2008
Date
2
0120082645
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082645