0120090396
02-26-2009
George L. Spencer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George L. Spencer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090396
Hearing No. 460200800140X
Agency No. 1G771001308
DECISION
On October 31, 2008, complainant filed an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint
alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Houston Processing and Distribution
Center facility in Houston, Texas. On February 11, 2008, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (Black), age (56 years old at time of incident),
and reprisal for prior protected EEO activity under a statute that was
unspecified in the record when:
1. On January 1, 2008, complainant's supervisor (RMO: Black, 31 years
old at time of incident) instructed him to load a truck by himself; and
2. complainant was sent home for improper conduct and failure to follow
instructions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but the AJ denied the hearing request on the grounds that
complainant failed to fully and timely comply with the AJ's discovery
orders. The AJ remanded the complaint to the agency, and the agency
issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision
concluded that complainant failed to prove that he was subjected to
discrimination as alleged.
Specifically, the FAD found that as regards complainant being instructed
to load a truck by himself, he failed to establish a prima facie case
of discrimination based on age, race, or reprisal because the order
did not amount to an adverse employment action and complainant was not
able to identify otherwise similarly situated coworkers outside of his
protected classes who were treated differently, and as regards reprisal,
the agency found that complainant failed to show that RMO was aware of
complainant's prior protected activity and failed to establish a nexus
between such activity and RMO's instructions. As regards complainant
being sent home, the agency found that complainant established a prima
facie case of race and age discrimination, but not reprisal, for the
same reasons as above. The agency further found, however, that agency
officials articulated a legitimate, nondiscriminatory reason for the
agency's action and that complainant failed to establish that such a
reason was a pretext for discrimination. On appeal, complainant disputes
the AJ's decision to deny the hearing, but offers no new arguments.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
In order to establish a prima facie case of age and/or race
discrimination, a complainant may show that he is a member of a protected
class, that he was subjected to an adverse employment action, and that
he was treated differently than otherwise similarly situated employees
outside of the protected class. See Potter v. Goodwill Industries
of Cleveland, 518 F.2d 864 (6th Cir. 1975). We find initially that,
as regards age and race discrimination, complainant established a prima
facie case when he was sent home but not when he was instructed to load
the truck by himself. Specifically, we find that being instructed to
load a truck by oneself does not constitute an adverse employment action
and that complainant is not an aggrieved employee. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As regards reprisal, we note that the Commission interprets the statutory
retaliation clauses "to prohibit any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity." EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Thus, while we
find that being instructed to load the truck does not constitute an
adverse employment action, it does constitute adverse treatment that
is reasonably likely to deter complainant or others from engaging in
protected activity. We further find, however, that complainant has not
shown that RMO was aware of his protected activity, nor has he shown a
nexus between such activity and the adverse treatment. In this regard we
note that RMO denied being aware of complainant's prior EEO activity and
when complainant was specifically asked during the investigation "why
do you think you were instructed to load the truck by yourself . . .
because of your prior EEO activity?" complainant did not address the
question, responding instead "the supervisors all agree with each other."
Report of Investigation (ROI) Affidavit A p. 2.
As regards complainant being sent home, we note that the prima
facie inquiry may be dispensed with since the agency has articulated
legitimate and nondiscriminatory reasons for its action. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983). Specifically, the notice of removal states that complainant
was disciplined for failure to follow instructions and for improper
conduct. See ROI, Exhibits 3, 4, and 5. The burden thus returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Texas Department of Community Affairs, 450 U.S. at 253; St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993). Complainant, however, has not
offered any evidence or argument showing that the agency's action was
a pretext for discrimination.
Therefore, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 26, 2009
__________________
Date
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0120090396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090396