01970977
12-08-1999
Stanley F. Kendrick, Complainant v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stanley F. Kendrick, )
Complainant )
)
v. )
) Appeal No. 01970977
William J. Henderson, ) Agency No. 4H-310-1132-95
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the agency's final decision (FAD)
concerning his claim that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant established
that he was discriminated against on the bases of his race (Negro) and
color (Black) when: 1) his pay was withheld; 2) he was issued a 7-day
suspension; 3) his work performance was inspected six times within a
30-day period; 4) he was watched while casing mail and out on the street;
and 5) he was harassed about filling out a CA-2 form and was required
to sign a blank form.
BACKGROUND
On June 30, 1995, complainant filed a formal complaint against the agency
that raised the above matters. Following an investigation, complainant, on
May 30, 1996, was provided a copy of the investigative file and notified
of his right to request a hearing before an EEOC Administrative Judge.
Since complainant did not respond, the agency issued a final decision
that dismissed claims (1), (3), (4) and (5) on the grounds of untimely
EEO counselor contact.<2> With regard to claim (2), the agency found
that complainant failed to establish a prima facie case of discrimination
based on race and color. This appeal followed.
ANALYSIS
AND
FINDINGS
At the outset, we note that, according to the complainant, claim (1)
occurred on January 31, 1995; claims (3) and (4) occurred on or about
February 27 - March 4, 1995; and claim (5) occurred on or about March
3, 1995. The record indicates that the complainant contacted an EEO
counselor on May 9, 1995. In 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(2)),
the regulations provide that prior to a request for a hearing in a case,
the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in ��1614.105,
1614.106 and 1614.204(c), unless the agency extends the time limits in
accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action. EEOC
Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission
to extend the time limit if the complainant can establish that (s)he
was not aware of the time limit, that (s)he did not know and reasonably
should not have known that the discriminatory matter or personnel action
occurred, that despite due diligence (s)he was prevented by circumstances
beyond his or her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the agency
or Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6,
1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i) - the predecessor
of 29 C.F.R. �1614.105(a)(1)). Thus, the limitation period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
have become apparent.
Based on our review of the record, we AFFIRM the dismissal of claims (1),
(4), and (5) on the grounds of untimely counselor contact. Complainant
did not provide any explanation regarding his failure to contact an
EEO counselor during the 45-day time limitation period that followed
each claim. We also find that claims (1), (4), and (5) are not timely
under the continuing violation theory.<3> In Ferguson v. Department
of Justice, EEOC Request No. 05970792 (March 30, 1999), the Commission
held that a continuing violation will not be found where, like here, the
acts complained of are by themselves capable of triggering a reasonable
suspicion of discrimination. In this regard, we find that claims (1),
(4), and (5) each had a degree of permanence which should have triggered
complainant's awareness of and duty to assert his rights.
Although complainant maintained that claim (3) arose on or about February
27-March 4, 1995, the agency's evidence, that is, the testimony of the
Manager, Customer Services, A-1, indicated that complainant was inspected
five times over a 150-day period. The inspection dates were November 9,
1994, February 28, 1995, March 3, 1995, March 31, 1995, and April 11,
1995. Given that the inspections continued into the 45-day period that
preceded complainant's May 9, 1995 contact with the EEO counselor, we
find that claim (3) was timely raised under the continuing violation
theory. Therefore, we will REVERSE the agency's dismissal of claim (3)
and will address its merits below.
Complainant's claims that, because of his race and color, he was issued a
7-day suspension and subjected to numerous inspections over a short period
of time, constitute claims of disparate treatment. Therefore, they must
be analyzed under the tripartite analysis enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Complainant has the initial burden
of establishing, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action;
and complainant must then prove, by a preponderance of the evidence,
that the legitimate reasons offered by the employer were not its true
reasons, but were a pretext for discrimination.
The above analytical paradigm need not be adhered to in all cases.
In appropriate circumstances, when the agency has established a
legitimate, nondiscriminatory reason for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has shown by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Therefore, in the present case, the Commission will bypass the prima facie
stage of the analysis and focus on whether the agency's explanations
for the above actions were a pretext for discrimination based on race
and color.<4>
Claim (2)
On the morning of Friday, January 27, 1995, complainant, after seeing his
doctor, went to work and saw A-1. According to his formal complaint,
he had been off-work, due to an injury, for approximately 19 days.
Complainant asked A-1 for the form he would need to request light duty.
A-1 informed him that he, complainant, had to get the form from the
Postmaster. According to complainant, he spoke to the Postmaster and
received the document he sought. Complainant stated that his conversation
with the Postmaster focused on when the form would be completed and how
it would be returned to management. According to complainant, he told
the Postmaster that he would see his doctor on the following Monday,
January 30, 1995, and should "know something" that day or Tuesday.
According to the agency, the Postmaster told complainant to contact A-1,
on Monday, if he was not going to report to work that day. Complainant
maintained, however, that the Postmaster never told him that he had to
contact A-1 on Monday. The record indicates that complainant did not
contact management until Tuesday afternoon, January 31, 1995. He was
carried in a LWOP/AWOL status for January 30 and 31, 1995. On April 18,
1995, complainant was issued a notice of seven-day suspension for failing
to follow instructions.
According to complainant, his suspension was untimely and punitive. A-1
indicated, however, that he took into account complainant's past
disciplinary record and history before making his decision. He also
testified, in pertinent part, that the suspension was not issued until
April 1995, because complainant was off work until late February 1995,
due to his injury. He also cited consultations with the union and
other resolution efforts, as the reasons for the delay.
On May 4, 1995, complainant's seven-day suspension was reduced, pursuant
to the grievance process, to three days. A-1 testified that complainant
did not lose any money from the suspension because it was served during
his long weekend by rotating his off days. The record does not contain
an affidavit from the Postmaster; however, he was the Step-2 Deciding
Official during the grievance process.
We find that the agency articulated a legitimate, nondiscriminatory
reason for issuing complainant a seven-day suspension. We further find
that complainant has not established that this reason was pretextual.
In addition to the lack of corroborating evidence to support complainant's
version of his January 27, 1995 conversation with the Postmaster, we find
that, other than his bare assertion, he presented no persuasive evidence
that his race or color played any role in this matter. Accordingly, we
find complainant has not established that he was discriminated against
because of his race and color with regard to this issue.
Claim (3)
A-1 testified that the purpose of an inspection is to obtain information
by observing a carrier's work habits. He maintained that the
inspections, at issue here, were "proficiency mail count and [street]
inspection[s]." According to A-1, the inspections were conducted
by different managers in order to obtain an unbiased evaluation of
complainant's work performance. Complainant, he stated, had been
observed not performing his duties as instructed. A-1 also stated that
no disciplinary actions were ever taken against complainant as a result
of the inspections. Although complainant maintained that inspections
were only conducted twice a year, A-1 indicated that an employee
could be inspected as many times as was needed to correct a problem.
He emphasized that inspections were corrective in nature and that all
carriers were inspected.
The agency articulated a legitimate, nondiscriminatory reason for
complainant being inspected on the dates in question, i.e., complainant
was not performing his duties as instructed; therefore, management
attempted to get an unbiased evaluation of his duty performance by
having different managers inspect him. Complainant has not established
that this reason was pretextual. Accordingly, we find that he has not
established discrimination.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
determination that complainant failed to prove that he was discriminated
against because of his race and color.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
____12-08-99__________ __________________________________
DATE Carlton M. 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:
_________________________
__________________________1On 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.
2An agency, by accepting and investigating a complaint, does not
necessarily waive its objections to a complainant's failure to comply
with the applicable time limitation periods. See Oaxaca v. Roscoe, 641
F.2d 386 (5th Cir. 1981); and Rice v. FDIC, EEOC Request No. 05970082
(May 15, 1997).
3When a continuing violation is properly alleged, the normal time limit
for filing a formal EEO complaint is suspended. Rowan v. Department
of Transportation, EEOC Request No. 05940661 (February 24, 1995). If
at least one of the acts complained of falls within the time limitation
period, a complaint filed at any time within this period is timely filed
with respect to all acts which are part of the continuing violation. Id.
An essential ingredient of a continuing violation is an analogous theme
uniting the timely and untimely acts of alleged discrimination by the
employer into a continuous pattern. Id.
4We find, however, that the agency erred in concluding that complainant
did not establish a prima facie case of discrimination based on race and
color merely because he did not identify similarly situated co-workers,
who were not Black, and were treated in a more favorable manner. To
establish a prima facie case, complainant need only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination based on his race and color.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). It is not
necessary for him to show that a comparative individual, from outside of
his protected group, was treated differently. O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n.4
(September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159
(7th Cir. 1996).