John H. Carter, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01971778 (E.E.O.C. Feb. 1, 2000)

01971778

02-01-2000

John H. Carter, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.


John H. Carter, Jr. v. United States Postal Service

01971778

February 1, 2000

.

John H. Carter, Jr.,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Northeast/New York Metro Region),

Agency.

Appeal No. 01971778

Agency No. 1A076100396

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (Black), reprisal (prior EEO activity), and physical

disability (lower back condition and service-connected gunshot wound

residuals affecting the right thigh, forearm, and abdomen), 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> Complainant alleges he was discriminated against when he was

denied an acting supervisor assignment in the Computer Forwarding Service

(CFS) unit, also referred to as a "204-B supervisory assignment."<2>

The appeal is accepted in accordance with EEOC Order No. 960.001. For

the reasons that follow, the agency's decision is AFFIRMED as MODIFIED.

During the relevant time, complainant was employed as a PS-5

Distribution Clerk at the agency's South Hackensack, New Jersey, postal

facility. Complainant alleges that when his PS-5 Accounting Clerk position

was abolished in 1993, he was assigned back to his previous position of

PS-5 Distribution Clerk notwithstanding his requests for higher level

job training and promotion. Complainant contends that in October 1995

he learned that two 204-B supervisory assignments were filled in the

CFS unit by allegedly less qualified individuals, Promotee 1, (P1)

with an April 1, 1995, effective date of assignment; and, Promotee 2,

(P2) with an undisclosed effective date of assignment), who were not of

his race and not disabled. Complainant argues that the Postmaster (PM)

harbored discriminatory animus against him, resented him for having filed

a prior EEO complaint, and for these reasons would not authorize a 204-B

assignment or any other type of promotion for complainant. Complainant

states that his instant complaint is not a claim that the agency failed to

accommodate his disabilities when he was reassigned to the Distribution

Clerk position, but that he was not promoted, in part, due to disparate

treatment based on his disabled status.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on June 24, 1996. At the

conclusion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge, but subsequently withdrew that request,

and instead asked the agency to issue its FAD.

The FAD concluded that complainant failed to establish a prima facie case

on any of the bases alleged, providing a detailed analysis addressing

whether the agency failed to accommodate complainant's disabilities

when he was assigned to the Distribution Clerk position. However, as

noted above, complainant has not raised this matter as a claim in his

discrimination complaint, and we hereby MODIFY the FAD to eliminate this

reference.

On appeal, complainant restates arguments previously made, and submits

additional documentary evidence in support of those arguments.<3> The

agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. 1981); and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission finds that complainant has established a prima facie case

with respect to race, disability, and reprisal, as stated below.

Initially, we find that complainant has shown that he is a qualified

individual with a disability based on PM's affidavit testimony that

he was aware of complainant's physical limitations and knew that

complainant required, and had historically received, light or limited duty

assignments. See Nance v. Department of Navy, EEOC Request No. 01964338

(October 16, 1998). We also find that complainant established a prima

facie case of disparate treatment on the bases of race and disability by

showing that he was qualified for the assignment in question, but not

selected in favor of P1 who was not of his race and not disabled.<4>

See Coleman v. U.S. Postal Service, EEOC Appeal No. 01973414 (March 3,

1999) (citing Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st

Cir. 1988)). We note that the record falls to show that P1 submitted an

application to the 204-B program, only that he expressed an "interest" to

the Postmaster at the facility from which he was transferred. Therefore,

we find that he was similarly situated to complainant who, despite his

contention otherwise, does not appear to have submitted an application

to the 204-B program.<5> We also find that complainant established

a prima facie case of reprisal because PM knew of his prior EEO

complaint, and there is a "nexus" given that PM was one of the named

discriminating officials in the prior complaint. We also find that

complainant experienced an "adverse action" when P1 was given the 204-B

assignment. See Hochstadt, supra.

The agency's articulated reason for its action was that complainant had

previously been offered acting supervisory positions in the CFS unit

as training to qualify for eventual promotion, but that complainant

had declined, indicating a preference for only certain types of

work. After carefully considering all of the evidence of record, as

more fully discussed below, we conclude complainant failed to prove,

by a preponderance of the evidence, that this reason was a pretext for

discrimination.

PM testified that he specifically recalled that complainant declined an

acting supervisory position in the CFS unit, located in Customer Services

Operations, in "early 1993," and that complainant communicated that he

was not interested in "Customer Services Operations" jobs, but only in

"Support Operations" jobs. Complainant denies this, stating that he never

refused a supervisory position of any type. The record is devoid of any

documentary evidence to either support or refute this testimony. However,

on appeal, complainant submits a copy of a letter dated July 13, 1994,

addressed to the Plant Manager, in which he notes the elimination of

his Accounting Clerk position, and requests a detail to the position of

Address Information Systems Analyst. Another letter, dated September 18,

1995, more generally requests a higher level assignment in "any area." As

noted above, the effective date of P1's assignment is April 1995, after

the first letter, and before the second letter. Therefore, considering

complainant's failure to make application to the 204-B program, presumably

because he was not interested in an CFS unit supervisory assignment,<6>

as well as his July 1994 written request for a specific assignment in

"Support Operations," we find that this evidence lends greater credibility

to PM's testimony that he believed that complainant was not interested

in working in the CFS unit and that he awarded the position in question

to P1 upon the request of P1's Postmaster at a neighboring facility for

this reason and not for any of the discriminatory motives alleged by

complainant.

Accordingly, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD as MODIFIED

herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

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 the 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 the 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 the 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 1, 2000

__________________

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.

2The 204-B program was administered at the regional level and required

a formal application, including supervisor recommendation on behalf of

interested employees.

3On appeal, complainant also addresses his claim that the agency failed

to provide him with a reasonable accommodation when it transferred him

to a non-supervisory position in the CFS unit in December 1995. This

matter is not properly before us, and will not be addressed herein.

4With respect to P2, who timely submitted the required application for

the 204-B program, we do not find that complainant established a prima

facie case of race or disability discrimination because there is no

evidence to show that complainant submitted the required application,

and therefore he was neither "qualified" nor "similarly situated" to

P2. See McDonnell, supra.

5A copy of the claimed 204-B application is not of record, and both of

complainant's two immediate supervisors testified that he did not contact

them for a recommendation to support a 204-B application, which would

have been required to process the application. The record further shows

that the date complainant was claiming to have filed the application

would have rendered it untimely.

6At the time in question, it appears that the only 204-B assignments

available at the South Hackensack facility were located in the CFS unit.