01986388
06-02-2000
Tim R. Bridges, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tim R. Bridges v. United States Postal Service
01986388
June 2, 2000
Tim R. Bridges, )
Complainant, )
) Appeal No. 01986388
v. ) Agency No. 1-J-607-1218-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
Whether complainant was discriminated against on the bases of race
(White) and retaliation (prior EEO activity) when on July 23, 1995, he
was issued a 7-Day Suspension; on August 23, 1995, the agency denied
his request to change his off days; on September 4, 1995, he was not
permitted to work the Labor Day holiday; on September 14, 1995, he was
issued a 14-Day Suspension; on October 23, 1995, the agency denied his
request to be reassigned to tour three; on November 28, 1995, he was
reassigned to the eighth floor; on December 1, 1995, his request for 24
hours of sick leave was denied; and on December 27, 1995, he was given
a 30-Day Notice of Removal.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an Electronic Technician, PS-09, at the Chicago Processing
and Distribution Center, Chicago, IL. Complainant requested counseling
on eight separate occasions between July 24, 1995 and December 27,
1995, alleging discrimination on the bases of race and retaliation in
the matter mentioned above. These informal complaints were consolidated
for processing. Complainant filed a formal complaint of discrimination
on these matters on January 10, 1996. Following completion of the
investigation, on December 2, 1997, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ, but then, by letter dated June 9, 1998
withdrew his request for a hearing and asked that the agency issue an FAD.
In its FAD, issued August 13, 1998, the agency found no discrimination.
This appeal, by complainant, followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part 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 case 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.
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. 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. 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. 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).
1) July 23, 1995 7-Day Suspension
The agency has articulated a legitimate, nondiscriminatory reason in
response to complainant's claim that he was discriminated against when
he was issued a 7-day suspension on July 23, 1995. At the outset, we
note that complainant was working another full time job, in addition to
his job at the agency. According to the agency, complainant received
the suspension for being absent from his assignment without permission.
Since the agency has articulated a legitimate, nondiscriminatory reason,
the burden shifts to complainant to show that this reason was a pretext
for discrimination. We find that complainant has failed to do so.
According to complainant, he did not report for his assignment to the
eighth floor because he went home sick. He said that he tried to find
his supervisor when he needed to go home sick, could not locate his
supervisor, so left a sick leave form on the supervisor's desk, and
went home. According to complainant, he had followed this procedure in
the past of leaving the form on his supervisor's desk without incident.
His supervisor, however, denied this particular sick leave form and,
therefore, complainant was absent from his assignment without permission.
We find it more likely than not that complainant's sick leave form was
denied because, the record shows that, he had been verbally warned by
the his supervisor in January that he had too many absences. We find,
therefore, that complainant has not shown discrimination with respect
to this claim.
2) August 23, 1995 Denial of Request to Change Off Days
The agency has articulated a legitimate, nondiscriminatory reason in
response to complainant's claim that on August 23, 1995, he was denied
his request to change his off days. According to the agency, S-1
stated that he was not aware of a request for a change of non-schedule
days for complainant. The agency also stated that the record contains
no evidence that the complainant requested a change of his off days.
Complainant has not shown pretext because he has not proven beyond his
mere assertion, nor does the record contain evidence, that he requested
a change of his off days. Complainant verifies in his appeal that no
evidence of this request exists. Complainant has, therefore, not shown
discrimination with respect to this claim.
3) September 4, 1995 Denial of Permission to Work Labor Day Holiday
The agency has articulated a legitimate, nondiscriminatory reason in
response to complainant's claim that, on September 4, 1995, he was not
permitted to work the Labor Day holiday. According to S-1, employees
were scheduled according to seniority from the volunteer holiday work
list and they were rotated within that list. Complainant was not
allowed to work on Labor Day because he was not scheduled to work.
Complainant has not shown pretext. According to complainant, E-1, an
employee with less seniority was allowed to work on Labor Day. The record
shows, however, that E-1, in fact, had more seniority than complainant.
Complainant's position seniority date is October 30, 1993, while the
seniority date of E-1 is April 6, 1991. Complainant has, therefore,
not shown discrimination with respect to this claim.
4) September 14, 1995 14-Day Suspension
The agency has articulated a legitimate, nondiscriminatory reason in
response to complainant's claim that on September 14, 1995, he was issued
a 14-Day Suspension. According to the agency, complainant received the
suspension because of his attendance record. The record shows that the
suspension was based on the fact that complainant had 176 hours of AWOL
(Absent Without Leave) from July 28, 1995 through September 10, 1995.
Complainant has not shown that this reason was pretextual. He has
not denied that he was AWOL for those hours, nor has he shown that
anyone else with as many AWOL hours was not suspended. Additionally,
the record contains no other evidence of pretext. Complainant has,
therefore, not shown discrimination with respect to this claim.
5) Denial of Request for Tour Reassignment
The agency has articulated a legitimate, nondiscriminatory reason for
denying complainant's October 23, 1995 request to be reassigned to tour
three. According to complainant, supervisors S-1, S-2, and S-3 all denied
his requests for reassignment while similarly situated employees, race
(Black), were granted reassignments. According to the agency, employees
must go through the bidding process to change tours. The record does
not show that complainant submitted a bid for the position. Complainant
has failed to show pretext. The record shows that the only comparison
employee that complainant cites is E-2, race (Black). This employee is
not, however, similarly situated to complainant because he was only given
a temporary change of tour, whereas the record shows that complainant
was requesting a permanent change of tour. Additionally, the record
contains no other evidence of pretext. Complainant has, therefore,
not shown discrimination with respect to this claim.
6) November 28, 1995 Reassignment to Eighth Floor
The agency articulated a legitimate, nondiscriminatory reason for
reassigning complainant to the eighth floor on November 28, 1995.
According to S-1, the ninth floor Multiple Position Letter Sorting
Machines were being phased out. Complainant only had ninth floor
experience and needed training on the eighth floor. Another supervisor,
S-4, stated that all technicians were being sent to the eighth floor for
on-the-job training on the Delivery Bar Code Sorters. Complainant has not
shown that these reasons were a pretext for discrimination. He asserts
that he had more seniority than fellow employees who were not reassigned
to the eighth floor and who needed training on that floor. However,
beyond this general assertion, he does not give information about who
these employees were, so it is not possible from the record to establish
that complainant did in fact have more seniority than these individuals
and that these individuals needed training on the eighth floor. A review
of the record does not reveal other evidence of pretext. Complainant has,
therefore, not shown discrimination with respect to this claim.
7) December 1, 1995 Denial of Sick Leave Request
The agency has articulated a legitimate, nondiscriminatory reason
for denying complainant's December 1, 1995 request for 24 hours of
sick leave. According to S-1, because of complainant's past record,
complainant was told to substantiate his request for 24 hours of sick
leave. When complainant failed to provide appropriate documentation,
his leave was disapproved. Complainant has not shown pretext. He cited
two Black employees as comparators, stating that their requests for sick
leave were granted without documentation. The record reveals, however,
that complainant was not similarly situated to these employees because,
unlike complainant, they did not have attendance problems or prior
disciplinary actions for attendance. Further, the record contains
no other evidence of pretext. Complainant has, therefore, not shown
discrimination with respect to this claim.
8) December 27, 1995 30-Day Notice of Removal
The agency has articulated a legitimate, nondiscriminatory reason
for giving complainant a 30-Day Notice of Removal. According to the
agency, complainant was removed from the agency because of his failure
to maintain regular attendance. Complainant has not shown pretext.
The record verifies that complainant had attendance problems. According
to complainant, he would not have had these attendance problems if
the agency had granted his requests for schedules changes. There is
no evidence in the record that the agency's failure to grant these
requests was discriminatory, nor is there evidence in the record of any
other employee with similar attendance problems who was not removed.
Complainant has, therefore, not shown discrimination with respect to
this claim.
CONCLUSION
Accordingly, the decision of the agency was 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
06-02-00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
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.