01a45469
03-18-2005
Davy K. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Davy K. Wright v. United States Postal Service
01A45469
March 18, 2005
.
Davy K. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45469
Agency No. 4G-780-0089-03
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated July 6, 2004, regarding his formal 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.; Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.; and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant was a Mail Handler, MH-4, at the agency's Austin Processing
and Distribution Center in Austin, Texas. Believing that he was
subjected to discrimination, complainant contacted the EEO office on
December 14, 2002. Informal efforts to resolve complainant's concerns
were unsuccessful.
On July 24, 2003, complainant filed a formal complaint based on race
(black), color (black), sex (male), age (DOB 9/21/61), religion (not
specified), disability (right shoulder) and in reprisal for prior
protected activity. Complainant's complaint was comprised of the
following six claims:
(1) On November 1, 2002, he was issued a Notice of Proposed Removal
(reduced to a Letter of Warning);
(2) On February 11 or 12, 2003, his scheduled days were changed;
(3) On an unspecified date, he was continually denied overtime;<1>
(4) On an unspecified date complainant was subjected to a supervisor's
sarcastic, degrading and humiliating remarks;
(5) On an unspecified date, he was paged over the intercom to return
back to his duty station;
(6) On an unspecified date, after checking his Official Personnel Folder
(OPF) he found copies of numerous disciplinary actions that he had not
seen before, even though he checked his OPF frequently.
In correspondence dated November 25, 2003, the agency informed
complainant that claims (4), (5) and (6) were dismissed for failure to
state a claim.<2> The agency accepted claims (1), (2) and (3) for
investigation. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Thereafter, on April 14, 2004,
complainant withdrew his request for a hearing and instead requested
that the agency issue a final decision.
On July 6, 2004, the agency issued the instant final decision finding
no discrimination regarding claims (1) and (2). The agency found that
complainant failed to establish a prima facie case of discrimination.
Specifically, the agency stated that complainant did not show that
similarly situated employees outside his protected classes were treated
differently. The agency noted that nearly 300 employees had schedules
changed or jobs abolished and many other employees were disciplined for
attendance problems. Further, the agency stated that the supervisor
who took the disciplinary action is the same race, color and sex as
complainant. With respect to complainant's basis of religion, the agency
found no evidence in the record that any management official was aware of
complainant's religion. Regarding the basis of age, the agency stated
that the responsible management officials were substantially older than
complainant, making it unlikely that age was a deciding factor in the
alleged actions. The agency also concluded that complainant failed to
prove he was disabled. The medical restrictions described in the record
were found by the agency to be moderate and not �substantially limiting�
to any major life activity. Finally, with respect to complainant's basis
of reprisal, the agency stated that the responsible management official
was unaware of complainant's prior EEO activity.
Assuming arguendo that complainant established a prima facie
case, the agency concluded that the agency articulated legitimate,
non-discriminatory reasons for its actions. Specifically, the agency
stated that complainant was issued a Notice of Proposed Removal
(claim (1)), which was later reduced to a LOW, for unsatisfactory
performance. The agency found that the notice was issued based on
progressive discipline, and that other employees were also disciplined
for unsatisfactory attendance. Regarding complainant's scheduled days
(claim (2)), the agency cited changes in operations as a result of an
alliance with FEDEX, surface network changes, decreases in volume and
the deployment of new equipment. Further, the former Plant Manager
explained that the decision to change complainant's schedule was based
on operational needs and medical limitations.
Regarding the alleged denial of overtime (claim (3)), the agency found
that complainant failed to identify any date on which the alleged
discriminatory event occurred, and dismissed the claim on the grounds
of untimely EEO Counselor contact.
On appeal, complainant addresses in a footnote the agency's dismissal
of claims (4), (5) and (6). Complainant argues that these claims �go
to the heart of [his] complaint . . . .� In particular, complainant
contends that in an effort to defend himself against the Proposed Notice
of Removal (claims (1)), he reviewed his OPF file and found disciplinary
actions that he maintains were never issued (claim (6)).
Additionally, in an effort to discredit the agency's proffered reason
for issuing the Notice of Proposed Removal (claim (1)), complainant
asserts that the supervisor who signed the removal notice had only been
his supervisor for one day. Moreover, complainant asserts that the
notice was issued within days of an AJ decision finding that the agency
discriminated against complainant. Regarding his change in schedule
(claim (2)), complainant states that the change was immediate. He argues
that the agency's articulated reasons cite broad changes to the agency
and fail to address why his removal was �effective immediately.� Finally,
with respect to the denial of overtime (claim (3)), complainant contends
that the agency's explanation does not cover the time period of November
2002 to May 2003.
In response, the agency maintains that complainant did not establish a
prima facie case when he failed to show that similarly situated employees
outside his class were treated more favorably. The agency acknowledges
that complainant names comparative employees, but asserts that he does not
explain how they were outside his protected class or treated differently.
Regarding the basis of age, the agency reiterated that complainant
failed to show that age played a role in any of the agency's actions.
With respect to complainant's disability claim, the agency noted that
complainant has a 50 lbs. lifting restriction, needs to rotate between
sitting and standing, and must avoid overhead work that exceeds 2 hours.
According to the agency, complainant failed to show that his impairment
substantially limited a major life activity. As stated in its decision,
with respect to claims of reprisal, the agency found that complainant
did not show that management knew of his prior activity. Specifically,
the agency states that the officials who issued the discipline, made
the schedule changes and assigned OT were unaware of complainant's
prior EEO activity. Additionally, the agency states that complainant
has failed to shown that any of the reasons provided by the agency were
pretext for discrimination.
Claims (1) and (6)
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).<3>
In claim (1), complainant claimed he was issued a Notice of Proposed
Removal, which was later reduced to an LOW. A copy of the November 1,
2002 notice reflects that the complainant was charged with �Unsatisfactory
Attendance - Failure to Maintain the Attendance Requirements of
Your Position.� Ten specific incidents are listed as �contributing
factors,� and reference is also made to three prior disciplinary actions.
The supervisor who signed the notice attested that the notice was issued
to discipline complainant for unsatisfactory attendance, and that all
lesser types of discipline had already been issued.<4>
Complainant challenges the agency's articulated reason, in essence,
through his argument in what the agency has identified as a separate
claim (claim (6)). Specifically, complainant asserts that his OPF
contained discipline that he had not previously seen. The Commission
finds that the agency inappropriately analyzed the matter identified
herein as claim (6) as a separate claim, and then inappropriately
dismissed it for failure to state a claim. To this end, the Commission
determines that the agency did not properly address the question as to
whether complainant has established that articulated reasons for its
actions regarding claim (1), were actually a pretext for discrimination
(as identified in claim (6)).The matter identified herein as claim
(6) should not have been viewed as an independent claim, but rather as
evidence related to claim (1). Consequently, claim (1) is remanded to the
agency for consideration of the pretext argument: namely, the legitimacy
of the discipline recorded in complainant's OPF and purportedly relied
upon by the agency in issuing the Notice of Proposed Removal.
Claim (2)
In claim (2), complainant alleges that his scheduled days were changed.
The District Manager attested that several modified work assignments
required changes due to revised mail flow, productivity improvements,
and changes in mail arrivals at the facility. According to the District
Manager, automated sort plan run schedules were adjusted. Consequently,
many jobs required a change in start times and scheduled days off to
meet operational needs, including complainant's position. The Manager
of In Plant Support attested that changes to jobs are governed by the
provisions of the collective bargaining agreement; and that the type of
jobs affected depends on which conditions change. Based on the instant
record, the Commission agrees that the agency has offered a legitimate
reason for changing complainant's scheduled days. We do not find that
complainant has shown the reasons to be pretext.
Claim (3)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As noted above, claim (3) was dismissed in the agency's July 6, 2004
decision on the grounds of untimely EEO Counselor contact. The record
reflects complainant fails to identify any date with respect to his
claim that �I was also continually denied OT . . . .� Therefore, claim
(3) is remanded to the agency for a determination as to whether any OT
denials occurred within forty-five days of complainant's December 14,
2002 EEO Counselor contact.
Claims (4), and (5)
In its November 25, 2003 acceptance letter, the agency dismissed claims
(4), and (5) for failure to state a claim. The agency concluded that
complainant did not suffer any measurable personal harm as a result of
the alleged incidents. The agency further noted that the claims were
not sufficiently severe or pervasive to state a claim of discriminatory
harassment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). 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).
In claim (4), complainant contends that he was subjected to a supervisor's
sarcastic, degrading and humiliating remarks. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Complainant has not shown that the alleged comments
were followed by any concrete action. Therefore, we find that claim
(4) was properly dismissed.
Complainant claimed in claim (5), that he was paged over the intercom
to return back to his duty station. While complainant may believe that
the incident was intended to humiliate him, the Commission does not find
that the alleged event resulted in a personal loss or harm to a term,
condition or privilege of complainant's employment.
Accordingly, based on a review of the entire record, including arguments
and evidence not specifically addressed herein, the agency's dismissal of
claims(4), and (5) is AFFIRMED. The agency's finding of no discrimination
in claim (2) is also AFFIRMED.
However, the finding of no discrimination regarding claim (1) is VACATED
and claim (1) is REMANDED to the agency for a supplemental investigation
considering the arguments raised in �claim (6).�
Moreover, the dismissal of claim (3) is also VACATED. Claim (3) is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. Regarding claim (1), the agency is ORDERED to consider complainant's
arguments in what has been identified herein as �claim (6).� The agency
shall accomplish the above referenced action and shall issue a final
decision on claim (1) within thirty (30) calendar days of the date that
this decision becomes final. A copy of the new final agency decision
shall be submitted to the Compliance Officer as referenced below.
2. Regarding claim (3), the agency is ORDERED to conduct a supplemental
investigation on the issue of whether and when complainant was denied
overtime opportunities. The agency shall supplement the record with
documentation, including affidavits if necessary, indicating when such
denials occurred. The agency shall redetermine whether complainant
timely contacted an EEO Counselor regarding the matter raised in claim
(3). Within thirty (30) days of the date that this decision becomes
final, the agency shall either issue a letter to complainant accepting
claim (3) for investigation or issue a new decision dismissing claim (3).
A copy of the letter accepting claim (3) or new decision dismissing claim
(3) must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 18, 2005
__________________
Date
1While this is not the numbering assigned to claims (3) - (6) in the
agency's �Amendment/Partial-Acceptance of Complaint�, we will refer to
the OT claim as claim (3) to be consistent with the numbering utilized
by the agency in its final decision.
2The complainant was further informed that he did not have a right to
appeal the dismissal at that time.
3The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
4 The Supervisor also explained that the Notice of Proposed Removal
was subsequently reduced to an LOW because �one step was flawed and the
process was start[ed] over.�