Charles J. Threatt, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01986457 (E.E.O.C. Mar. 15, 2000)

01986457

03-15-2000

Charles J. Threatt, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charles J. Threatt v. United States Postal Service

01986457

March 15, 2000

Charles J. Threatt, )

Complainant, )

) Appeal No. 01986457

) Agency No. 4F-926-0302-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

On August 20, 1998, Charles J. Threatt (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated July 21, 1998, 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 Commission hereby accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

him based on race, color, religion and retaliation when, among other

things, he was issued a seven day suspension.

BACKGROUND

Complainant was employed by the agency as a Vehicle Maintenance Assistant

at the Laguna Niguel, California Post Office. Complainant initiated EEO

Counseling on October 15, 1997. He filed a formal complaint on October

29, 1997, alleging discrimination on the bases of race (Black), color

(black), religion (Seventh Day Adventist) and retaliation (prior EEO

activity) when:

1) on July 29, 1997, he was issued a seven day suspension, effective

August 25-31, 1997;

2) on September 5, 1997, he was denied Family Medical Leave Act (FMLA)

sick leave;

3) on July 29, 1997, his non-scheduled days off were changed;

4) he was denied training;

5) on October 6, 1997, he was denied a cash advance; and

6) he was made to work in a steel storage container.

The agency accepted the complaint for investigation and processing.

At the conclusion of the investigation, the agency issued a copy of its

investigative report and notified complainant of his right to request an

administrative hearing. After complainant failed to request a hearing,

the agency issued its FAD on July 21, 1998.

In its FAD, the agency found that the complainant had failed to establish

a prima facie case of race, color, religion and retaliation discrimination

because he was unable to demonstrate that he was treated differently than

any other comparative employee in a similar situation. The FAD further

stated that complainant had failed to establish that the legitimate,

nondiscriminatory reasons articulated by the agency for its decision

were a pretext for discrimination. This appeal 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).

In response to complainant's claims of discrimination, the agency

presented evidence that complainant had been issued the suspension for

failure to follow instructions and failure to properly submit a request

for leave form. The form had not been presented to complainant's

supervisor for the proper signature and complainant was subsequently

charged with Absence Without Leave (AWOL). Regarding the schedule change

for complainant's days off, the agency asserted that the days were changed

in order to comply with an EEO Settlement Agreement that resolved an

earlier EEO complaint of complainant. According to the agency, the

"steel storage container" that complainant claimed he was made to work

in was actually the outdoor parts storage shed that complainant would

have to retrieve parts from in the course of his duties repairing postal

vehicles, but he was not required to perform his job duties inside

the shed. Regarding the denials of the requests for a cash advance,

for FMLA leave and for training, the management officials testified that

they were unaware complainant had ever made requests for these items.

We find that the agency has articulated legitimate, nondiscriminatory

reasons for its action.

Since the agency articulated legitimate, nondiscriminatory reasons for

its action, the burden returns to the complainant to demonstrate that

the agency's articulated reasons were a pretext for discrimination.

We find that complainant has failed to do so. Complainant did not

rebut the agency's claim that the change in schedule was due to an

EEO Settlement Agreement, did not show that he had actually obtained

a signature on his request for leave form before leaving the postal

facility, and did not contradict the agency's claims that he was not

required to work in the parts shed, but to just retrieve parts from it

as needed. The complainant did not provide any evidence that he had

actually requested FMLA leave, a cash advance or training. He provided

no specifics in either his affidavit, or his appeal statement, regarding

his claims which would show that the agency's reasons were pretext.

Therefore, the agency's determination that complainant failed to establish

that he was discriminated against was correct.<2>

Accordingly, the decision of the agency was proper and is AFFIRMED.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 15, 2000

______________ __________________________________

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:

_______________ __________________________

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.

2 We find that the agency erred to the extent that it found that

complainant had not established a prima facie case of race, color,

religion and retaliation discrimination because he was unable to

demonstrate that he was treated less favorably than any similarly

situated employee. We note that to establish a prima facie case,

complainant must only present evidence which, if unrebutted, would support

an inference that the agency's actions resulted from discrimination.

Furnco, 438 U.S. at 576. It is not necessary for the complainant to

rely strictly on comparative evidence in order to establish an inference

of discriminatory motivation necessary to support a prima facie case.

O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,

EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem

Steel Corp., 82 F.3d 157 (7th Cir. 1996).