0120081020
05-23-2008
Samuel Sam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel Sam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081020
Agency No. 4F926015607
DECISION
Complainant timely initiated an appeal from an final agency decision
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.
At the time of the events at issue, complainant was employed as a
Supervisor of Customer Services at the post office in Yorba Linda,
California. Complainant alleged that his supervisor discriminated
against him on the bases of national origin (African), color (Black),
and reprisal for prior protected EEO activity when:
1. He was denied training and promotion opportunities;
2. On March 1, 2007, he was issued a Letter of Warning;
3. On March 1, 2007, he was given a discussion regarding the closeout
report;
4. He is the only supervisor assigned to conduct route inspections;
5. On March 3, 2007, he was charged AWOL for his absence; and
6. Other employees were asked to write allegedly false statements about
complainant.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge. 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 found that complainant failed to establish a
prima facie case of sex discrimination as alleged. The agency further
determined that even assuming, arguendo, complainant established a prima
facie case, agency management proffered legitimate non-discriminatory
reasons for its actions, and that complainant failed to establish that
the agency's reasons were pretext for discrimination.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The Commission determines that the agency established legitimate
non-discriminatory reasons for its conduct in the instant matter.
Specifically, the agency found, and the record reflects that complainant
failed to provide any detailed information regarding the denial of
training and promotion opportunities as alleged in claim 1. The record
indicates that neither complainant nor his attorney provided an affidavit
to the EEO Investigator in this matter to include specific dates and
instances of training or promotion denials. Complainant's supervisor
indicates that complainant was offered training opportunities which
he declined. In claim 2, agency witnesses stated that complainant was
issued a Letter of Warning on March 30, 2007, for failure to follow
instructions and not for any reason related to complainant's protected
bases. In addition, the Letter of Warning was later reduced to an
official discussion.
With regard to claim 3, complainant's supervisor stated he spoke with
complainant about an error in the closeout report in order to ensure
that the report was accurate and in compliance with agency policy.
The record indicates with respect to claim 4, that complainant was charged
to perform route inspections because the agency's regular route inspector
was unavailable that day. Complainant's supervisor asked complainant to
perform route inspections based on the needs of the agency at the time.
The supervisor states that complainant was charged AWOL on March 3, 2007
as indicated in claim 5 because he failed to secure prior approval before
taking leave. Finally, concerning claim 6, the record indicates that
complainant failed to provide support of any kind for his contentions
that his supervisor solicited negative comments from other employees
about complainant.
Upon review of the record, the Commission finds that the agency has
articulated legitimate, non-discriminatory reasons for its actions in
this matter. The Commission further finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. Complainant
has failed to demonstrate that the agency's conduct was based on any
discriminatory animus towards complainant's national origin or color.
After a review of the record in its entirety, including consideration
of all statements submitted 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.
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
May 23, 2008
__________________
Date
4
0120081020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036