01993418
09-25-2001
William Gonzales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William Gonzales v. United States Postal Service
01993418
September 25, 2001
.
William Gonzales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993418
Agency No. 1F-927-0028-97
Hearing No. 340-98-3193X
DECISION
In accordance with 29 C.F.R. � 1614.405, complainant's appeal from the
agency's final decision in the above-entitled matter has been accepted by
the Commission. Complainant alleged that he was discriminated against
on the bases of his race (Latin), color (brown), sex (male) and reprisal
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when:
on September 25, 1996, his supervisor (RMO) threatened him with a knife;
the agency did not discipline RMO in the same manner that it would a
craft employee; and
sometime in July or August 1996, the agency did not award complainant
a $500.00 cash award.
Believing that he had been discriminated against as referenced above,
complainant filed a formal complainant of discrimination with the
agency on January 17, 1997. Upon receipt of the investigative file,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On January 11, 1999, the AJ issued a recommended decision without a
hearing, finding that complainant failed to establish discrimination on
any of his proffered bases. It is from this decision that complainant
now appeals. For the reasons which follow, we affirm the AJ's decision.
BACKGROUND
At all times relevant to the instant complainant, complainant was employed
by the agency as a PS-4 Mail Processor at the Santa Ana Processing and
Distribution Center in Santa Ana, California. On September 25, 1996,
complainant, his union representative and a Supervisor of Distribution
Operations were meeting with RMO in RMO's office. Sometime during
the conversation, RMO removed a steak knife from a drawer in his desk.
Complainant states that RMO repeatedly stabbed the knife over the desk
drawer; RMO stated that he was absent mindly �fiddling [around and]
ended up with a steak knife in [his] hand.� The union representative
called the RMO's supervisor into the room, and the supervisor told RMO
to put the knife away. However, no one expressed any safety concerns
and the meeting continued.
As a result of the incident with the knife, complainant reported RMO
to RMO's supervisor, the Postal Service's Inspection Service, and local
police. The Inspection Service and police did not file charges against
RMO. The agency however, issued RMO a Letter of Warning, referred him to
the Employee Assistance Program, sent him to an anger management program,
and issued him discipline for �conduct unbecoming a postal employee.�
During July or August 1996, the agency awarded six of its seventy
employees a cash award for their demonstrated superior performance
and attendance. RMO did not select the employees who were to receive
the awards. A group of six supervisors selected the award recipients.
ANALYSIS AND FINDINGS
The Commission reviews AJ decisions without a hearing de novo.
29 C.F.R. � 1614.109(g). In the absence of direct evidence of
discrimination, the allocation of burdens and order of presentation
of proof in a Title VII case alleging discrimination is a three-step
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
First, complainant must 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. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then complainant must prove, by a preponderance of the
evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
Initially, we note that complainant is unable to establish reprisal
discrimination because he has not demonstrated that he previously engaged
in protected activity. Complainant points out that he filed numerous
union grievances. Complainant presented no evidence that he engaged
in protected EEO activity as part of his union activities. Such union
activity however, is not protected by the anti-retaliation provisions of
Title VII. Leary v. Department of the Navy, EEOC Petition No. 03920075
(February 19, 1993).
Complainant alleges that RMO discriminated against him by threatening
him with a knife. RMO offers a nondiscriminatory reason for his actions;
namely, careless fidgeting. Inasmuch as complainant proffers no evidence
which would tend to establish that RMO's actions were taken because of
complainant's race, color or sex, we find that the AJ properly issued
a recommended decision without a hearing.
Complainant also contends that RMO was leniently treated for the
incident with the steak knife. Complainant asserts that if RMO was in a
�craft� position his punishment would have been more severe. The agency
responded saying that RMO received the appropriate measure of discipline
for his actions. Under Title VII, craft employees do not comprise a
protected class. In addition, complainant has failed to demonstrate
that he is aggrieved by the manner in which the agency disciplined RMO.
The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Complainant has failed to identify any
such harm or loss with respect to the discipline RMO received.
Regarding the cash award issue, RMO did not play a role in determining
who would received the awards. Complainant has failed to present
evidence that the six supervisors who made the selections considered
race, color, sex, or previous EEO activity as a selection criteria.
Assuming that complainant was able to establish a prima facie case with
respect to his non-selection for the cash award, the agency has proffered
a non-discriminatory reason for not selecting complainant for the cash
award; namely, the selectees demonstrated superior performance and
attendance. Complainant does not challenge the motives of the officials
who made the selections, nor has complainant offered evidence which would
tend to establish that these reasons are a pretext for discrimination.
CONCLUSION
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 (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
September 25, 2001
__________________
Date