01986122
06-20-2000
Rufus D. Osborne, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,
Rufus D. Osborne v. United States Postal Service
01986122
June 20, 2000
Rufus D. Osborne, )
Complainant, )
) Appeal No. 01986122
) Agency No. 4H-320-0016-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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.<1> Accordingly, the appeal is accepted in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Black) and reprisal (prior EEO
Activity<2>) when on September 6, 1997, his supervisor (the Supervisor)
required him to submit documentation for a sick leave absence, and on
September 9, 1997, the Supervisor informed him that his documentation was
unacceptable and that he would be required to submit medical documentation
for all future sick leave absences.
BACKGROUND
Complainant was a City Letter Carrier at the Ft. Walton Beach Post Office,
Florida. On September 5, 1997, complainant was casing First Class mail as
directed by the Postmaster when the Supervisor directed him to case flats.
A verbal confrontation ensued during which complainant admitted that he
stated to the Supervisor that he might not be at work the following day
because his stomach hurt.
The following day, Saturday, complainant telephoned the Supervisor and
told him he was sick with a stomach virus and would not be at work.
The Supervisor instructed complainant to provide documentation for his
illness when he returned to work.
On September 8, 1997, complainant returned to work and provided a letter
signed by him and his wife stating that he was sick with a stomach
virus on September 7, 1997. On September 9, 1997, the Supervisor told
complainant that the letter was unacceptable.<3> Complainant stated
that the Supervisor then told him he was to provide medical documentation
for all future uses of sick leave.
Complainant averred that he was sick on September 7, 1997, and that white
employees who were absent for less than 3 consecutive days provided either
no documentation or letters similar to his.<4> Complainant stated that
he used only 16 hours of sick leave during that calendar year, and none
during that quarter. He stated that in the Supervisor's affidavit of
August 21, 1997, concerning the issues raised in complainant's February
1997 complaint, the Supervisor expressed his continued disappointment
that the discipline he issued to complainant had been modified.
The Supervisor averred that he did not discriminate or retaliate against
complainant. He stated that he believed complainant abused sick leave
because he threatened to call in sick during their verbal confrontation
on September 5, 1997, and then did so. The Supervisor stated that
he was having trouble with employees calling in sick on a Saturday,
and that when a white, female employee telephoned that she was sick
and would not be at work shortly after complainant called, he directed
her to also provide documentation for her illness.<5> He averred that
because he believed complainant misused sick leave, he did not think
the letter was acceptable. He stated that he told complainant that in
the future, when medical documentation was required, he should bring in
something more substantial such as a medicine bottle, prescription or
doctor's statement. The Supervisor also stated that the comparison
employees noted by complainant were not similarly situated because
none had a verbal confrontation with him in which they threatened to
call in sick the day prior to using sick leave. He stated that he has
had an official discussion with a white, female employee regarding her
unscheduled absences, and required a white, male to provide documentation
for use of sick leave on Saturday, December 28, 1996.
The agency issued a final decision finding that complainant failed to
establish a prima facie case of discrimination based on race because he
failed to show that he was treated differently than similarly situated
employees of another race. The agency found that complainant failed to
establish a prima facie case of discrimination based on reprisal because
he failed to prove a causal connection between his EEO activity and the
agency's action.
Complainant appealed, arguing that the Supervisor's affidavit contained
untruths, that he was not confrontational during the conversation of
September 5, 1997, that the white, female noted by the Supervisor was
not under his supervision at the time of her request for sick leave, and
that, on September 9, 1997, in the presence of a witness, the Supervisor
directed complainant to submit medical documentation for all future use
of sick leave.<6>
Complainant also stated that in the Supervisor's August 21, 1997,
affidavit, the Supervisor stated that complainant practiced racial
McCarthyism, was obsessed with race and racial issues, and believed
there was a racist under every rock, particularly if the person was a
supervisor. Complainant argued that these statements demonstrate that
the Supervisor stereotyped him and was biased against him.
FINDINGS AND ANALYSIS
Complainant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). In general, for complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden
of persuasion and it is his obligation to show by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
After reviewing the record, the Commission finds that complainant failed
to demonstrate that the reasons articulated by the agency were a pretext
for discrimination. The Supervisor perceived that complainant was
insubordinate on September 5, 1997, threatened to call in sick, and then
did so on September 6, 1997. He, therefore, believed complainant abused
sick leave and requested documentation as was within his discretion.
The Supervisor averred that on September 9, 1997, he told complainant
that in the future, when documentation was required, complainant was to
submit a letter from a doctor, a prescription, or a medicine bottle.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The record indicates that complainant engaged in protected activity when
he filed an EEO complainant in February 1997, and submitted a statement
for a co-worker's EEO complaint on September 1, 1997. The Supervisor
was aware of that activity, having given a sworn statement on August 21,
1997, for complainant's complaint and participated in the interview of
complainant regarding his statement for the co-worker's complaint the
day before the adverse action.<7> The Commission thus finds that a
causal connection exists between the protected activity and the adverse
action based on closeness in time.
We find, however, that complainant fails to show that the agency's
actions were in reprisal for his protected activity. He claimed
that the Supervisor required documentation for his absence and medical
documentation for all future use of sick leave in retaliation for his EEO
activity; however this assertion is not enough for him to prevail absent
other evidence that a discriminatory motive existed. The Supervisor
articulated legitimate reasons for requiring documentation for the
September 6, 1997, absence, and provided a sworn statement that he
directed complainant to provide medical documentation in the future only
when documentation was required. Therefore, the agency's determination
that complainant failed to establish that the agency retaliated against
him or that its actions were based on discriminatory animus was correct.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
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
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 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).
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
June 20, 2000
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
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 filed an EEO complainant against the Supervisor in
February 1997. Complainant also provided a statement in support of a
co-worker's EEO complaint against the agency. On September 5, 1997,
a manager interviewed complainant about his statement in the presence
of the Supervisor and a union representative. Complainant stated that
the questions asked in the interview were not accusatory or unreasonable.
3 Complainant averred that the Supervisor asked him if he had seen a
doctor who could provide a note, or had taken any medication and could
bring in the medicine bottle, to which complainant replied that he
had not. Complainant stated that he then asked the Supervisor to tell
him exactly what kind of documentation he wanted, but the Supervisor
gave him no answer.
4 Complainant provided a list of comparison employees.
5 The Supervisor cited section 513.361 of the Employee and Labor Relations
Manual which provides that, for periods of absences of 3 days or less,
a supervisor may require medical documentation or other acceptable
evidence of incapacity to work when the supervisor deems documentation
desirable for the protection of the interest of the agency.
6 The co-worker provided an unsworn statement.
7 The Commission notes that complainant described the interview as
reasonable and non-accusatory, and thus finds no per se violation of
the regulations regarding interference with the EEO process.