01973958
10-20-1999
Guy Marshall, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Guy Marshall, )
Appellant, )
) Appeal No. 01973958
v. ) Agency No. 4A-100-1007-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On April 18, 1997, Guy Marshall (the appellant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD) dated January 22, 1997, 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.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency discriminated against him
based on race and reprisal when he was issued a 7 day suspension.
BACKGROUND
Appellant was employed by the agency as a Letter Carrier at the East
Side Parcel Post Annex in New York, New York. Appellant filed a formal
complaint on January 10, 1996, alleging discrimination on the bases of
race (black) and reprisal when on September 12, 1995, he was issued a 7
day suspension for failure to drive in a safe manner. The agency accepted
the complaint for investigation and processing. At the conclusion of
the investigation, the agency issued a copy of its investigative report
and notified appellant of his right to request an administrative hearing.
After appellant requested a final decision without a hearing, the agency
issued its FAD on January 22, 1997.
In its FAD, the agency found that the appellant had failed to establish a
prima facie case of race or reprisal discrimination because he was unable
to demonstrate that he was treated differently than other similarly
situated employees not in his protected groups. It also found that
appellant had not established that he had previously participated in EEO
activity in order to claim a basis of retaliation. The agency stated
that its legitimate, nondiscriminatory reason for the discipline was
the motor vehicle accident appellant was involved in on July 19, 1995.
It further stated that appellant had failed to establish that the
legitimate, nondiscriminatory reason articulated by the agency for its
decision was a pretext for discrimination. This appeal followed.
ANALYSIS AND FINDINGS
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 appellant 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). To establish a prima facie case of reprisal, an
appellant must show that: 1) he was engaged in protected activity; 2) the
alleged discriminating officials were aware of the protected activity;
3) the appellant was subsequently subjected to adverse treatment;
and 4) the adverse action followed the protected activity within
such a period of time that retaliatory motivation may be inferred.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500
(6th Cir. 1987); Frye v. Department of Labor, EEOC Request No. 05940764
(December 15, 1994).
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 appellant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to appellant's claims of discrimination, the agency presented
evidence that appellant had been involved in a motor vehicle accident
on July 19, 1995. This followed a number of other motor vehicle
accidents/incidents that appellant had been involved in, and after he
had undergone remedial driver safety training. 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 appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. Appellant maintained throughout
the complaint process and on appeal that his complaint was not about
"discrimination" but about "harassment." Appellant's claim of harassment
seems to be grounded in the previous instances of discipline he had
received and what he termed the "continuous threats" to fire him, which
he had previously pursued through the grievance process. Appellant did
not argue that he had not been involved in a motor vehicle accident,
as charged in the disciplinary letter. Appellant's grievances did not
allege that he had been issued discipline for discriminatory reasons.
More importantly, appellant presented no evidence or argument that
would show that the agency had acted based on his race or in reprisal
for any EEO activity he may have previously engaged in. Therefore,
the agency's determination that appellant failed to establish that he
was discriminated against was correct.<2>
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
___10-20-99___________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Appellant initially received the
FAD on March 10, 1997, when it was hand delivered to him at work.
On March 25, 1997, he notified the agency that the correspondence
he had received was "incomplete." The agency re-sent the FAD by
certified mail to appellant on March 25, 1997, which he received on
April 2, 1997. We therefore find that appellant's appeal is timely.
2 We find that the agency erred to the extent that it found that appellant
had not established a prima facie case of race discrimination because
he was unable to demonstrate that he was treated less favorably than
any similarly situated employee. We note that to establish a prima
facie case, appellant must only present evidence which, if unrebutted,
would support an inference that the agency's actions resulted from
discrimination. Furnco, 438 U.S. at 576. It is not necessary for
the appellant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).