01981914
04-10-2000
Frank W. Zachry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E. / S.W. Region) Agency.
Frank W. Zachry v. United States Postal Service
01981914
April 10, 2000
Frank W. Zachry, )
Complainant, )
) Appeal No. 01981914
v. ) Agency Nos. 4G-7601188-95
) 4G-7601324-95
) Hearing Nos. 310-97-5426X
William J. Henderson, ) 310-97-5427X
Postmaster General, )
United States Postal Service, )
(S.E. / S.W. Region) )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaints of unlawful employment discrimination on the
basis of age (41) in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and on the bases of
race (Caucasian), color (non-color), national origin (Italian/American),
sex (male), and reprisal (prior EEO complaint 4G-7601188-95) in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant's first complaint was filed on May 1, 1995,
and his second was filed on November 10, 1995. In his first complaint,
complainant claims that he was discriminated against based on his age,
race, color, national origin and sex when on April 24, 1995, he was
issued a seven (7) day suspension. In his second complaint, complainant
claims that he was discriminated against based on his age, race, color,
national origin, sex and reprisal when on September 8, 1995, he was issued
a fourteen (14) day suspension. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a letter carrier at the agency's Park Plaza Station in Arlington,
Texas. Complainant's April 24th notice of suspension indicated that he
would be suspended seven calendar days for unsatisfactory performance.
This notice cited seventeen instances of unauthorized overtime from March
15, 1995, through April 11, 1995. On May 1, 1995, complainant contacted
an EEO Counselor regarding this suspension. Complainant's September
8th notice of suspension indicated that he would be suspended fourteen
days for unsatisfactory performance. This notice cited thirty-two
instances of unauthorized overtime, including three instances of penalty
overtime, from April 1995, to August 1995. During the period of time
before complainant's suspensions, two other employees, one, a forty-one
year old White female and the other, a thirty-four year old Black male,
received discipline for unauthorized overtime. The White female received
a letter of warning from supervisor N in October 1994, and a seven day
suspension from supervisor N in December 1994. The Black male received
a letter of warning from supervisor N in November 1994.
The record indicates that 1017-Bs (Records of Unauthorized Overtime Use)
for all employees of the 1995 calendar year were not located by the
agency.<2> The Manager of Customer Services (MCS, responsible official
involved in both of complainant's complaints) and other supervisors
stated under oath that they were unable to locate the 1017-Bs. However,
evidence of record reflects that the unauthorized overtime worked by
complainant was recorded and tracked on PS Form 1017-B.
Complainant stated that he called in on each occasion to get authorization
over fifteen minutes. He further stated that other carriers have not been
suspended for working unauthorized overtime or for their "pace slowing."
Complainant declared that for the relevant time period, we do not know
how many other employees used unauthorized overtime or the extent they
may have used it.
Various supervisors at the Park Plaza Station offered the following:
the MCS stated that no other employee used unauthorized overtime
to the extent used by complainant, and that complainant's overtime
occurred on an almost daily basis; supervisor K, who issued the
September 8th suspension, stated that complainant used unauthorized
overtime continuously, regardless of whether the mail load justified
it; and supervisor N stated that complainant had demonstrated that
he could perform his route in the allotted time when he was being
watched/checked, but that he issued a letter of warning, on March 13,
1995, to complainant for time wasting practices and expanded street time.
Supervisor N further stated that because the letter of warning did not
correct complainant's performance, he issued the April 24th suspension.
With respect to the use of unauthorized overtime by other letter carriers,
the MCS stated that these carriers used unauthorized overtime on occasion,
but that those instances were rare. Supervisor N stated that he does
not recall if any of the other carriers used unauthorized overtime, but
that complainant's use was "very frequent." Supervisor J stated that he
could not recall if any of the other carriers worked any unauthorized
overtime, but that none of them had a continuous problem during that
time with unauthorized overtime.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 2, 1995, and on November 10, 1995. The complaints were
accepted for processing and were investigated. At the completion of
investigation, complainant was provided with the opportunity to request
either a hearing before an EEOC Administrative Judge or a FAD without
a hearing. Complainant requested a hearing before an EEOC Administrative
Judge (AJ).
After reviewing the evidence of record, the AJ issued a recommended
decision (RD), dated November 17, 1997, without a hearing finding
no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of age, race, color, national
origin or sex discrimination because he failed to demonstrate that
similarly situated employees not in his protected classes were treated
differently under similar circumstances. Further, the AJ concluded
that although other employees at that station may have used "some"
unauthorized overtime, there is no evidence that any employees,
who were not disciplined, used close to the amount of unauthorized
overtime as complainant during the same approximate time period. The AJ
concluded, however, that complainant established a prima facie case
of reprisal discrimination. The AJ then concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that various supervisors at that station testified that no
employees used unauthorized overtime equal to that used by complainant.
The AJ also found that complainant's evidence did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination. While noting that the1017-Bs (1995)
for all of the employees could not be located, the AJ emphasized that
there is evidence that unauthorized overtime was tracked and that two
other employees were similarly disciplined for overtime abuse. Further,
the AJ found that the record contains no evidence of any affidavits
contradicting the MCS's assertion that no other listed employees used
unauthorized overtime equal to that used by complainant. In its FAD,
the agency adopted the AJ's RD finding no discrimination.
On appeal, complainant contends that the AJ erred when she did not
hold a hearing. Complainant further contends that because comparison
documentation (1995 1017-Bs) was not provided by the agency, he lacked
the evidence to prove his case.<3>
ANALYSIS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). Complainant has the initial burden of establishing a
prima facie case of discrimination. McDonnell at 802. If complainant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was pretext for discrimination. Id. at 256.
I. Prima Facie Cases
ADEA
In an ADEA case, complainant may establish a prima facie case by
showing that he is in the protected group (over 40), and was treated
less favorably than other similarly situated employees outside his
protected group. See O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 878 (1996). In this case, we find that complainant has failed to
establish a prima facie case of age discrimination. While complainant
is within the ADEA's protected group, complainant has failed to present
evidence that similarly situated individuals not in his protected class
were treated differently under similar circumstances. Two employees,
a White female under age 40<4> and a Black male under 40, also received
discipline for their use of unauthorized overtime.
TITLE VII
Complainant can establish a prima facie case of race, color, national
origin or sex discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination. Shapiro v. Social
Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing
McDonnell Douglas, 411 U.S. at 802). In general, to establish a prima
facie case of discrimination based on a Title VII disparate treatment
claim, complainant must show that he belongs to a statutorily protected
class and that he was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of his employment situation are nearly identical to those of
the comparative employees whom he alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Here the record shows that complainant is a member of four protected
groups: Caucasian, non-color, Italian/American and male. However,
the Commission finds that complainant has not established that other
employees were treated differently under similar circumstances. Two
employees, a White female and a Black male, also received discipline
for their use of unauthorized overtime. In the absence of any other
evidence from which to infer a discriminatory motive, the Commission
finds that complainant has not established a prima facie case of race,
color, national origin or sex discrimination.
Reprisal
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. McDonnell
Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997). We note that a nexus or causal relationship between
his prior protected EEO activity and the later agency action may be shown
by evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive can he
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Generally, the Commission has held that such a nexus may be established
if the protected EEO activity and the later adverse events occurred
within one year of each other. Patton v. Department of the Navy, EEOC
Request No. 05950124 (June 26, 1996).
The record clearly shows that complainant engaged in protected activity,
on May 1, 1995, when he filed a formal EEO complaint; that an agency
official, particularly the MCS, was obviously aware of his prior EEO
activity; and that a nexus exists between his prior EEO activity
on May1st, and the later incident occurring on September 8, 1995.
Furthermore, the record clearly shows that complainant was subjected to
adverse treatment by the agency when he received his notice of a 14-day
suspension. Therefore, complainant has established a prima facie case
of reprisal regarding his September 8th notice of suspension.
II. Legitimate, Nondiscriminatory Reason
After complainant establishes a prima facie case of discrimination,
the burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Burdine, 450 U.S. at 253.
Various supervisors at the agency's postal facility testified that no
employees used unauthorized overtime equal to that used by complainant.
The Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason explaining its actions.
III. Pretext for Discrimination
Because the agency has articulated a legitimate, nondiscriminatory reason
for its actions, complainant now bears the burden of establishing that the
agency's articulated reason is a pretext for discrimination. Shapiro,
supra. Complainant can do this by showing that a discriminatory reason
motivated the agency. Id. (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law. However, disbelief
of the reasons put forward by the agency, together with the
elements of the prima facie case, may suffice to show intentional
discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center, 113 S.Ct. at 2749)
(other citations omitted).
After a thorough review of all the evidence of record, the Commission
finds that complainant has failed to meet his burden of establishing, by
a preponderance of the evidence, that the agency's reason for its actions
was a pretext masking discrimination. While noting that the1017-Bs
(1995) for all of the employees could not be located, there is evidence
that unauthorized overtime was tracked and that two other employees
were similarly disciplined for overtime abuse. Furthermore, the record
contains no evidence of any affidavits contradicting the MCS's assertion
that no other listed employees used unauthorized overtime equal to that
used by complainant. There is no credible evidence to demonstrate that
the agency's actions in this situation were rooted in retaliatory animus.
Thus, the Commission finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for its action
was a pretext for discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's protected groups. We discern
no basis to disturb the AJ's decision. Therefore, after a careful
review of the record, contentions on appeal, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 10, 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.
2The record shows that a supplemental investigation was conducted due to a
remand order of the Administrative Judge. This investigation centered on
whether 1017-Bs were completed for cited comparisons. The record reflects
that, in 1995 and 1996, the White female and Black male comparisons,
discussed supra, continuously used unauthorized overtime.
3Also noted in complainant's response to the Order to Show Cause, an
inappropriate exparte communication between the AJ and the investigator
in this case is alleged by complainant. The AJ, however, indicated that
no substantive communications were held.
4The record reflects that this comparison was under age 40 at the time
of her letter of warning and subsequent suspension.