01990853
10-02-2001
Thomas W. Cranfield, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Thomas W. Cranfield v. United States Postal Service
01990853
October 2, 2001
.
Thomas W. Cranfield,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01990853
Agency No. 1-J-607-0067-97
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD), dated July 6, 1997, 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. Complainant alleged that he
was discriminated against on the bases of race (Black) and color (brown),
when on February 20, 1997, management in the issuance of a disciplinary
action, in part, took the word of another employee (Caucasian/white)
over his word that he had been sleeping on the job. He was issued a
14 day suspension. However, the complainant filed a grievance, and the
suspension was reduced to seven days. He was reimbursed for five days
wages lost as a result of the suspension. The complainant also alleged
that he was denied union representation at the time in issue.
The record reveals that during the relevant time, complainant was
employed as a level 3 elevator operator at the agency's Chicago Central
facility.<1> Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
July 6, 1997. 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 final 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 a final decision.
In its FAD, the agency concluded that complainant had failed to
establish a prima facie case of race and/ or color discrimination in
that complainant had failed to identify any comparison employees who
were treated more favorably than the complainant.
On appeal, complainant contends that the FAD was incorrect in implying
that the complainant's immediate supervisor had observed complainant
sleeping, and states that the supervisor never observed him sleeping.
The complainant stated that the supervisor was told by the female employee
that he was sleeping, and that she was lying or mistaken.
The complainant stated that he was refused union representation by
management, was not counseled in the matter, and did not receive a
verbal warning or a written warning. Complainant stated that these steps
should have been taken before disciplinary action was taken against him.
The agency requested that we affirm its FAD.
In general, to establish a prima facie case of discrimination based
on a Title VII disparate treatment claim, complainant must show that
he belongs to a statutorily protected class and that he was accorded
treatment different from that accorded persons otherwise similarly
situated who are not members of the class. Applying the standards set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Prewitt
v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of race and/or color discrimination because the complainant failed to
show that he was treated less favorably than similarly situated employees
who are not members of his protected groups. Also, complainant did not
otherwise set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination could be drawn.
In reaching this conclusion, we note that complainant advised the EEO
investigator that he did not know of any similarly situated employees.
The complainant's immediate supervisor testified that he was not aware of
any other employee who was caught sleeping of the job. This supervisor
also testified that other co-workers had stated that the complainant
had been going to the 7th floor to sleep for sometime. The manager in
charge testified that he had no reason to disbelieve the female employee
because the complainant was to be at his assignment, which was on the
1st floor and not on the 7th floor. The female employee, in a routing
slip to the complainant's immediate supervisor, advised that she found
the complainant sound asleep at her desk with both feet up on the desk.
She stated that she had to talk in a loud voice to awake complainant.
She asked him where he worked and complainant said maintenance.
As concerns the complainant's allegation regarding lack of union
representation, his supervisor and the manager both testified that
the complainant was not denied union representation. The manager
stated that all maintenance personnel are allowed union representation.
The complainant had filed a grievance and had received benefit through
the union process.
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. In reaching this conclusion,
we note that the evidence revealed that management has the exclusive
right to take disciplinary action against employees for the type of
conduct involved in the instant case.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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
October 2, 2001
Date
1Notwithstanding his position title, complainant,
according to a grievance memo, was assigned on
the day in issue to clean the first floor lobby.