05a00759
11-21-2000
Dennis J. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis J. Smith v. United States Postal Service
05A00759
November 21, 2000
.
Dennis J. Smith,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00759
Appeal No. 01A00371
Agency No. 4-C-430-0052-99
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Dennis
J. Smith v. United States Postal Service, EEOC Appeal No. 01A00371
(April 17, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed an EEO complaint alleging discrimination on the basis
of reprisal (prior EEO activity) when on or about February 11, 1999,
he was issued a Letter of Warning (LOW) for unsatisfactory performance.
The agency accepted the complaint for investigation. Complainant was
sent a copy of the investigative file and notified of his right to request
either a hearing before an EEOC Administrative Judge or a final decision.
Complainant failed to respond regarding his rights, therefore, the agency
issued its final decision (FAD). Complainant filed an appeal to the EEOC.
The previous decision, upon review of the record, summarily affirmed
the FAD.
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); Loeb v. Textron, 600 F.2d 1003(1st Cir. 1979). 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. United States
Postal Serv. Bd. 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 Servs.,
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 was issued the LOW because he was
involved in an incident in which he injured his back and did not report
it immediately, as required by agency procedure. Complainant admitted
that he was aware of the agency procedure, however, he did not report
the situation until the next day. Upon review, we find that the agency
has articulated a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
Complainant attempted to show that the agency's reasoning was pretext
by showing that a similarly situated employee (Employee, no prior EEO
activity) was not punished when she failed to report an accident until the
following day. Upon review of the record, we find that complainant has
failed to demonstrate that agency's reason was pretext for discrimination.
We note that, at the time of her first accident, the Employee had only
been employed with the agency for a month and was not aware of the
agency's procedure. Further, the record indicates that the Employee
was involved with a second accident a couple of months later and failed
to report the accident until the next working day. After this second
incident, the Employee was issued a ten-day suspension. Accordingly,
the Commission finds that complainant has failed to demonstrate that
the agency's reasoning was pretext for discrimination. Therefore,
the Commission finds that the agency's determination that complainant
failed to establish that he was discriminated against was correct.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A00371 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 21, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.