Gaither L. Brown, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00503 (E.E.O.C. Apr. 24, 2000)

01a00503

04-24-2000

Gaither L. Brown, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gaither L. Brown, Jr., )

Complainant, )

) Appeal No. 01A00503

v. ) Agency No. 4F-907-0021-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of 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 the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).

ISSUE PRESENTED

The issue presented is whether the agency correctly determined that

complainant failed to demonstrate by preponderant evidence that he was

discriminated against based on his race and physical disability.

BACKGROUND

The record reveals that, during the relevant time, complainant was

employed as a Letter Carrier, at the agency's Torrance Post Office

facility in Torrance, California. Complainant alleged that on October 16,

1998, he was replaced by a junior co-worker (Caucasian, on limited duty)

in his job assignment as a Special Delivery Messenger. Believing he

was a victim of discrimination on the bases of race (African American)

and physical disability (Flat Feet), complainant sought EEO counseling on

October 16, 1998. Subsequently, complainant filed a formal complaint on

December 24, 1998. At the conclusion of the investigation, the agency

sent complainant a letter outlining his appeal rights. Complainant

failed to make an election to exercise his right to request a hearing

or a decision without a hearing. Therefore, the agency issued its final

agency decision (FAD).

The FAD concluded that complainant failed to establish a prima facie

case of race and disability discrimination. Further, the FAD found

that the agency stated a legitimate, nondiscriminatory reason for its

action and that complainant failed to show that the agency's reason

was pretext for discrimination. Complainant appeals this decision.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

In the present case, complainant alleged that the agency discriminated

against him based on race and disability when he was taken away from

his previous position as a Special Delivery Messenger and replaced

by a co-worker. 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). 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 Dept. of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, 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 Ctr. 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 Serv.,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Assuming, arguendo, that complainant states a prima facie case of race and

disability discrimination, we turn to the agency to articulate legitimate,

nondiscriminatory reasons for its action. The record indicates that the

agency eliminated the Special Delivery Messenger craft. Therefore, the

agency argued that complainant's position as a Special Delivery Messenger

was eliminated and the co-worker did not replace him. Accordingly,

the Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its action.

The burden returns to complainant to demonstrate that the agency's

reasoning was pretext for discrimination. Upon review of the record,

we find that complainant has failed to show that the co-worker replaced

him in his Special Delivery Messenger position and has failed to

demonstrate by preponderant evidence that the agency's reasoning was

pretext for discrimination. Accordingly, we find that agency's action

is not tantamount to discrimination.

CONCLUSION

Accordingly, after a careful review of the record, we affirm the FAD.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 24, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

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 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.