Ellis E. Williams, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency,

Equal Employment Opportunity CommissionSep 3, 1999
01976672 (E.E.O.C. Sep. 3, 1999)

01976672

09-03-1999

Ellis E. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,


Ellis E. Williams, )

Appellant, )

) Appeal No. 01976672

v. ) Agency No. 4-C-442-1113-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency, )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

his allegation that the agency violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted

by the Commission in accordance with the provisions of EEOC Order

No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

appellant based on race (African American) and color (black) when his

request for a reassignment was allegedly denied.

BACKGROUND

Appellant filed a formal complaint in June 1995 in which he raised the

issue identified above. Although the complaint was initially dismissed

by the agency, that decision was reversed by the Commission and the

agency was ordered to process the complaint. Williams v. U.S. Postal

Service, EEOC Appeal No. 01956330 (December 23, 1996). Following an

investigation, appellant did not request an EEO administrative hearing

and the agency thereafter issued a final decision in August 1997 finding

no discrimination. It is from this decision that appellant now appeals.

During the period in question, appellant was employed as a Distribution

Clerk at the agency's facility (Facility 1) in Steubenville, Ohio.

In January 1995, appellant requested a transfer to the agency's

Youngstown, Ohio facility (Facility 2). Although there were no vacancies,

appellant's request was kept on file by Facility 2's personnel office.

In May 1995, appellant was informed that Facility 2 had vacancies for

the position of LSM Operator, and that, in order to qualify for that

position (the Position), he would be required to take dexterity training

and pass a test. Appellant began this training and received a letter

dated June 2, 1995, stating that, once he completed the training, he

would have to demonstrate the ability to perform machine distribution

and accuracy training. The letter states further:

You will be allowed 47 hours to complete machine application training.

In addition, you may be assigned a scheme requirement, in which you will

be allowed one hour of training for 16 memory items assigned. If you

fail to qualify either on the 47 hour machine application training,

manual scheme training, or machine scheme training, this failure will

result in your separation from the Postal Service (emphasis in original).

Appellant thereafter submitted a letter dated June 6, 1995, declining

the Position.

Appellant contends that, at the time he received the aforementioned

letter, he was on his way to successfully qualifying for the Position.

In this regard, appellant states that the letter was designed to

intimidate him into declining the transfer. He also takes exception

with a statement made to him by his supervisor regarding the transfer.

Specifically, the supervisor told appellant that, because there was a

shortage of clerks at Facility 1, he was going to hold appellant for 90

days in the event appellant was transferred.

ANALYSIS AND FINDINGS

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. Appellant has the initial burden

of establishing a prima facie case of discrimi-nation. If appellant

meets this burden, then the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant must then prove, by a prepon-derance of the evidence, that

the legitimate reason articulated by the agency was not its true reason,

but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Even assuming that appellant can establish a prima facie case, we

find that the agency has articulated a legitimate, nondiscriminatory

reason for the action at issue. See Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 254 (1981). Specifically, officials testified

that appellant's request for a transfer was granted and that the reason

he was not reassigned was because he withdrew his request.

At this point, appellant bears the burden of establishing that the

agency's articulated reason is a mere pretext for discrimination.

Appellant can do this either directly, by showing that a discrimi-natory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at 256.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme

Court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination."

Id. at 519 (emphasis in original).

The Commission finds appellant has not established pretext. Specifically,

we find that the reason appellant was not reassigned was because he

withdrew his request for the Position. Although appellant asserts that

he was intimidated by officials into withdrawing his request, we find

insufficient evidence to support such a conclusion. In this regard,

although the agency's June 2, 1995, letter states that appellant would

be removed if he did not successfully complete the LSM training, he

has not demonstrated that this condition was either out of the ordinary

or discriminatory. Accordingly, the Commission finds appellant has not

established that he was discriminated against based on race.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the FAD and find appellant has

not established that the agency discriminated against him as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

09-03-99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations