01986536
04-18-2001
Charles S. Jordan, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles S. Jordan, Jr. v. United States Postal Service
01986536
April 18, 2001
.
Charles S. Jordan, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986536
Agency No. 1G-741-0006-98
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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.,
and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. Accordingly, the appeal is accepted in accordance with 29
C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Black), color (Black), sex (male),
religion (Christian), and disability (anxiety disorder) when, on August
12, 1997, his supervisor notified him that his relief position (the
Position) would be re-posted effective August 22, 1997.
BACKGROUND
Complainant was a Postal Source Data System (PSDS)<1> Relief Technician
at the Tulsa Post Office, Tulsa, Oklahoma. Complainant claimed that
because he was out of work for eight weeks in May and June 1997 under
Family Medical Leave Act (FMLA) excused conditions,<2> the supervisor
discriminated against him by re-posting his Position and requiring him
to bid on it.<3>
Complainant claimed that on August 6, 1997, in the presence of a
co-worker, his supervisor told him to find another job.<4> Complainant
also claimed that the supervisor refused to give him FMLA papers,
refused to speak to the EAP Counselor about his illness, and refused
to communicate with him. Complainant claimed that the Personnel
Specialist (Specialist) sent him a letter notifying him that he had
been involuntarily unassigned by the supervisor and would be forced to
bid out of PSDS,<5> and forced him to bid prematurely.<6>
The supervisor averred that he did not tell complainant to find
another job, did not refuse to give him FMLA papers or speak to the EAP
Counselor, and was available to communicate with complainant each day
in his office. The supervisor averred that the Position was re-posted
because of prevailing business conditions. The supervisor stated that
relief technicians replace and work in the regular technician's place
when the regular technicians are on leave, or in emergency situations,
and that relief positions complement regular staff during peak workloads.
The supervisor stated that he was responsible for insuring that adequate
staff was available during critical cut-off times for timely payroll
processing. He averred that it was necessary for him to re-post the
Position to insure that enough help was available on close-out Fridays,
and that adequate staff was available on Saturdays for the city time
and attendance payroll system.<7> Complainant's position was thus
re-posted with Wednesday and Thursday as unscheduled days.
The supervisor averred, and the record indicates, that within the past
24 months, he re-posted jobs assigned to three White males, two White
females, and three Black males.
Complainant averred that he informed the EAP Counselor about his condition
in 1994,<8> and told his supervisor in May 1997.<9> He averred that he
requested accommodation for his condition in 1996 when he requested a
transfer to the Dallas, Texas, Office.<10> He averred that he requested
use of FMLA leave and installation of peep holes in the front and rear
doors of his work location. The supervisor stated that complainant
never requested peep holes.
On August 20, 1997, complainant requested temporary light duty.
His Doctor's accompanying letter, dated August 18, 1997, stated that
complainant had symptoms that would not allow him to work full-time
for the next four weeks. The Doctor stated that complainant would be
further evaluated in four weeks. On September 15, 1997, the Doctor
released complainant to return to full duty stating that complainant was
being treated for Bipolar Type I Disorder with lithium and had improved
considerably. The Doctor stated that there was no evidence of paranoia
and complainant was not currently depressed. The Doctor stated that
although complainant was improved, he was still engaged in treatment.
In its final decision, the agency found that complainant's position was
re-posted in accordance with the National Agreement because of a change
in non-scheduled days, and that the non-scheduled days were changed
because of business needs; namely, to provide better staffing for agency
operations. The agency found that complainant failed to establish a
prima facie case of discrimination based on race, color, sex, and religion
because he was unable to show that individuals outside of his protected
groups were treated more favorably. The agency noted that complainant
failed to show that management was aware of his religious preference,
that his religious preference required specific consideration, or that
his religious preference was factored into the decision to re-post
the Position. The agency further found that complainant failed to
establish that he was a qualified individual with a disability under
the Rehabilitation Act.
On appeal, complainant provides a statement from a second co-worker.
The co-worker wrote that the supervisor was trying to make complainant
�bid out� of his relief position and verbally made it known that he
was trying to get complainant out of PSDS. Complainant also questioned
the need to change the unscheduled days, questioning who performed his
tasks on Friday and Saturday prior to the re-posting. In response,
the agency argues that the co-worker's statement is not certified, was
received by complainant indirectly from a third party, and offers no
specific evidence. The agency stated that complainant offered no new
statements and that his questions were addressed in the investigation
when the supervisor averred that the Position was re-posted to meet
current business conditions.
FINDINGS AND ANALYSIS
For purposes of this analysis, we will assume that complainant is an
individual with a disability within the meaning of 29 C.F.R. � 1630.2(g).
Complainant's claim of discrimination based on race, color, sex, religion
and disability presents the issue of whether the agency subjected him to
disparate treatment on these bases. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), provides an analytical framework for proving employment
discrimination in cases in which disparate treatment is alleged. First,
complainant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut complainant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, complainant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination. Id.
The Commission notes that the McDonnell Douglas analysis need not be
adhered to in all cases. Where the agency has established legitimate,
nondiscriminatory reasons for its employment decision, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, that is, whether the complainant has proven by a
preponderance of evidence that the agency's explanations were a pretext
for actions motivated by prohibited discriminatory animus. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for re-posting the Position. The supervisor
explained that current business conditions necessitated insuring that
sufficient staff were available on Friday and Saturday evenings for
timely processing of critical operations; namely, payroll systems and
time and attendance processing. Complainant successfully bid on the
re-posted Position. Complainant questioned why it was necessary to
re-post the Position and who performed his relief functions on Friday
and Saturday prior to the re-posting. The supervisor stated that
current business conditions necessitated the change in unscheduled days.
Complainant failed to show that business conditions did not require the
change or otherwise establish that the agency's articulated reason was
a pretext for discrimination.<11>
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the agency's decision and find
that the complainant has not established that the agency discriminated
against him as claimed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 18, 2001
__________________
Date
1 PSDS is an electronic data processing network that gathers operational
and administrative data from post offices, and processes and disseminates
the information.
2 In a June 4, 1997 letter to the Employee Assistance Program (EAP)
Counselor, complainant's psychiatrist (the Doctor) stated that complainant
suffered from anxiety disorder, related in large part to recent traumatic
events in which complainant's life was threatened in the city of Tulsa.
The Doctor stated that complainant had significant anxiety with symptoms
of paranoia on a daily basis, believed that he was going to be killed
or attacked in the Tulsa area, and had some evidence of agoraphobia,
or feeling that he was not comfortable outside of his home. The Doctor
stated that complainant was on medication which he was changing because
of side effects, and recommended that complainant take another 30 days
of medical leave, and be transferred to another city to benefit his
psychiatric condition. The Doctor did not provide any information on
side effects caused by the medication.
3 In his formal complaint of October 31, 1997, complainant claimed that
on August 7, 1997, the supervisor threatened him with a Letter of Warning
(LOW) and restricted sick leave (RSL) for six non-FMLA leave occurrences,
re-posted the Position effective August 22, 1997, required him to bid on
two residual jobs by August 26, 1997, and denied his transfer request on
September 26, 1997. The agency issued a final decision dated December 15,
1997, finding that the claim regarding denial of complainant's transfer
request was not addressed during pre-complaint counseling, and referred
complainant back to the EEO Counselor to address this newly raised issue.
Pursuant to 29 C.F.R. � 1614.107(e), the agency dismissed complainant's
claim regarding the threatened LOW and RSL. Complainant did not appeal
this decision.
4 The co-worker averred that he did not remember what was said.
5The Specialist averred that she did not notify complainant that
he was being involuntarily unassigned or forced to bid out of PSDS.
She averred that the letter of August 11, 1997, notified complainant that
he would become an unassigned regular on the date the posting results
were announced if he was not the senior bidder.
6 The Specialist averred that on August 20, 1997, she sent complainant
a letter providing him with the opportunity to state a preference for
one of the residual vacancies and stated that he could be assigned if he
failed to state a preference. She stated that the letter should not have
been sent until after the August 22, 1997, posting if complainant was not
the senior bidder. Complainant was the successful bidder. She stated
that she informed complainant that the letter was sent prematurely and
stated that she believes this is what complainant is referring to. The
Specialist also stated that she was unaware of complainant's condition.
7Complainant's position was domiciled on Tour 3, 14:50 hours to 23:00
hours, with Friday and Saturday unscheduled.
8The EAP Counselor stated that complainant first contacted him on October
13, 1994, with anxiety and depressive symptoms. The Counselor referred
complainant to his family doctor and closed his file on August 3, 1995.
He averred that he heard from complainant once or twice over the next
two years, then complainant contacted him in August 1997 concerning his
current work assignment. The Counselor re-opened the file on September
10, 1997.
9The supervisor averred that he was unaware of complainant's condition
until August 1997.
10The record does not contain a copy of a transfer request or information
on the exact date of his request. The agency notified complainant on
September 26, 1997, that his request was not approved because of his sick
leave usage and low leave balance. The letter notified complainant that
if there were mitigating circumstances leading to the low sick leave
balance, he should submit a response for further consideration.
11 The co-worker's uncertified statement submitted on appeal that the
supervisor wanted complainant out of PSDS and therefore re-posted his
Position does not support a contrary conclusion. Had complainant not
been the successful bidder, he would have been an unassigned regular
within the same division.