01a41591
03-07-2005
Wallace Twitty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wallace Twitty v. United States Postal Service
01A41591
March 7, 2005
.
Wallace Twitty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41591
Agency No. 1H-321-0001-02
DECISION
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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Flat Sorter
Machine Operator at the agency's Tallahassee, Florida Processing
and Distribution Center. Complainant filed a formal EEO complaint
on December 3, 2001, claiming that he was discriminated against on
the bases of race (African-American), sex (male), color (black), and
disability (knee injury) when on September 4, 2001, he was denied the
opportunity to see a shop steward.<1>
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 failed to establish a
prima facie case of discrimination on any alleged basis. Specifically,
the agency found that complainant was unable to demonstrate that similarly
situated employees not in complainant's protected classes were treated
more favorably than complainant. The agency requests that we affirm
its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
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 discrimination on any alleged basis because complainant failed to
identify any similarly situated employees who were treated more favorably
than complainant when he was denied the opportunity to see a shop steward.
Moreover, we find that complainant has failed even to identify an adverse
employment action by the agency in this matter. Specifically, the
evidence of record indicates that complainant indeed saw a shop steward
on September 4, and 5, 2001. According to record evidence provided by the
agency, clock rings for the relevant time period reveal that on September
4 and 5, 2001, complainant's clock moved to �Operation 607" identified
by the agency as designated union time. On appeal, complainant fails
to offer any persuasive evidence in support of his claim that the agency
denied him the opportunity to see a union steward on September 4, 2001.
In order to establish a prima facie case of discrimination, complainant
must show (1) he belonged to the claimed protected class; (2) he was
subjected to an adverse employment action; and (3) he was treated less
favorably than similarly situated employees who are not members of the
protected group. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). Here, we find that complainant has failed to meet the
second and third prongs of the McDonnell Douglas test. Specifically,
we find that complainant was not subjected to any adverse agency action,
nor was he treated less favorably than any similarly situated employees
identified by complainant herein.
Therefore, after a careful review of the record, 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
March 7, 2005
__________________
Date
1The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.