01A41796_01A41797
06-08-2004
John S. Mariano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John S. Mariano v. United States Postal Service
01A41796, 01A41797, 01A32697
06-08-04
.
John S. Mariano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A41796, 01A41797, 01A32697
Agency Nos. 4-H-350-0080-02, 4-H-350-0161-02, 1-H-366-0006-03
DECISION
INTRODUCTION
Complainant timely initiated appeals from three final agency decisions
(FAD) concerning his complaints of unlawful 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.
These appeals are accepted pursuant to 29 C.F.R. � 1614.405, and are
consolidated pursuant to 29 C.F.R. � 1614.606.
ISSUES PRESENTED
Whether the agency discriminated against complainant on the bases of
race/national origin (Asian-Pacific Islander), sex, age (48) and reprisal
for prior EEO activity when:
(1) he was harassed, and as of March 2002, he had not been promoted to
the position of Maintenance Support Clerk (Agency No. 4-H-350-0080-02,
Appeal No. 01A41796) (Bases: national origin, sex, and age);
(2) he was not selected to act as a supervisor in May 2002 (Agency
Nos. 4-H-350-0161-02, Appeal No. 01A41797) (Bases: race, sex, age);
(3) beginning in February 2002, he was bypassed for overtime (Agency
Nos. 4-H-350-0161-02, Appeal No. 01A41797) (Bases: race, sex, age);
(4) custodial job assignments were not equitably distributed (Agency
Nos. 4-H-350-0161-02, Appeal No. 01A41797) (Bases: race, sex, age);
(5) beginning in February 2002, he was denied a detail to a Maintenance
Support Clerk position (Agency Nos. 4-H-350-0161-02, Appeal No. 01A41797)
(Bases: race, sex, age);
(6) on July 27, 2002, he was not detailed as Postal Systems Coordinator
(Agency Nos. 4-H-350-0161-02, Appeal No. 01A41797) (Bases: race, sex,
age); and
(7) he was continuously not detailed to Maintenance positions and
overlooked for overtime (Agency No. 1-H-366-0006-03, Appeal No. 01A32697)
(Bases: national origin, sex, age, and reprisal).
BACKGROUND
During the relevant time, complainant was employed as a Laborer Custodian,
PS-03, at the agency's Mobile, Alabama facility. Complainant alleged that,
since his return to the Maintenance craft in December 2000, management
subjected him to harassment and denied him the opportunity for detail
assignments and promotion. He asserted that he was promised a promotion
to a Maintenance Control position when a vacancy became available, yet he
was not afforded the opportunity to perform details during the absence of
the regular clerks. He further contended that, as a form of harassment,
management denied him equitable opportunities for overtime and rotation
of job assignments. The record reflects that complainant was eventually
promoted to the position of Maintenance Control Clerk, PS-05.
At the conclusion of the investigation conducted for issue (1),
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested a hearing, but subsequently withdrew
his request. On April 29, 2003, the agency issued a final decision,
finding no discrimination. The agency determined that complainant
failed to establish a prima facie case of discrimination as to any of
his alleged bases. Furthermore, it found that management articulated
a legitimate nondiscriminatory reason for not promoting him to the
position of Maintenance Support Clerk, namely that the position was
a modified rehabilitation position, not a vacant funded position,
the duties of which were created to accommodate an injured employee
(comparator-1). In addition, to the extent that complainant alleged that
the agency refused to post a vacant Maintenance Support Clerk position,
the agency determined that the position had not been filled due to
hiring constraints. Finally, the agency found that the conditions of
complainant's employment were not so altered or sufficiently severe or
pervasive to create a hostile work environment. The agency concluded
that complainant failed to prove that its articulated reasons were
pretext for discrimination.
With respect to issues (2)-(6), the agency conducted its investigation,
provided complainant with the Report of Investigation (ROI), and informed
complainant of his right to request a hearing or a FAD. When complainant
failed to respond within the required time frames, the agency issued a
FAD, finding no discrimination. The agency determined that complainant
failed to present evidence showing that other similarly-situated
individuals outside of his protected group were treated more favorably.
It further found that management articulated legitimate nondiscriminatory
reasons for its actions, and that complainant failed to prove that its
reasons were pretext for discrimination. It concluded that complainant
failed to establish that discrimination had occurred.
Finally, in a FAD issued on March 12, 2003, the agency dismissed issue
(7) because it stated the same claim that was pending before the agency
in issues (2)-(6), Agency No. 4-H-350-0161-02, Appeal No. 01A41797.
See 29 C.F.R. � 1614.107(a)(1).
On appeal, complainant contends, among other things, that: 1.) a black,
female in her mid-twenties was placed in the Maintenance Control Clerk
job vacancy before he was; 2.) comparator-1 was initially reassigned
as a �Clerk,� not a Modified Maintenance Control Clerk; 3.) management
has harassed him by making inappropriate statements against him, giving
him inequitable job assignments and overtime, continuing to deny him a
detail/promotion into the Maintenance Control Clerk position, and singling
him out for not following the �chain of command;� 4.) he qualified for the
Associate Supervisor Program, yet the employees identified by management
as �better qualified� than he, either did not apply or did not make it
to the interview level; 5.) the only overtime he is receiving is Off
Day overtime, and not Prior or After overtime; 6.) custodial assignments
are not equitably distributed, as three employees are rarely, if ever,
required to do lawn maintenance; and 7.) the agency fails to post or
announce temporary vacancies for the Mobile Area when vacancies occur.
Finally, complainant asserts that issue (7) is not a duplicate claim
as he continues to experience retaliation and harassment. The agency
provides no statement on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
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); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). 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, that is, 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 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).
The Commission finds that complainant has established a prima facie
case of discrimination on the bases of race/national origin and sex
with respect to issue (2) and race/national origin with respect to issue
(4). In order to establish a prima facie case of discrimination based
on race/national origin, sex, and age, complainant may show: 1.) that he
is a member of a protected group; 2.) that he was subjected to an adverse
employment action; and 3.) that he was treated less favorably than other
similarly situated employees outside of his protected groups. We note
that it is not necessary for complainant 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., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996).
With respect to issue (2), complainant established a prima facie case
of race/national origin and sex discrimination where complainant was
not selected to act as a supervisor in May 2002, complainant identified
two employees (Black, female, 46; Asian-Pacific Islander, female, 52)
(comparator-2; comparator-3) who were detailed during the relevant
period while he was not.<1> With respect to issue (4), where custodial
job assignments were not equitably distributed, complainant established
a prima facie case of race discrimination in that he identified three
employees (Black, male, 53; Black, male, 45; White, male, 45) who were not
tasked with doing odds and ends work, including floor/buffing maintenance,
outside work, recycling, and work case cleaning, which he was required
to do.<2>
The burden now shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. While the burden upon the
agency to articulate a reason is not an onerous one, Commission precedent
holds that the agency must set forth with sufficient clarity reasons
for complainant's disparate treatment such that he has a full and fair
opportunity to demonstrate that those reasons are pretext. See Parker
v. United States Postal Service, EEOC Request No. 05900110 (April 30,
1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997). Upon review of the record, we find that the agency
failed to meet its burden as to issue (2) when it presented evidence
that complainant was not selected to act as a supervisor in May 2002
because other employees were better qualified than complainant, and as
to issue (4) when it presented evidence that the custodial assignments
are equitably distributed.
As to complainant's nonselection to act as a supervisor in May 2002,
the Manager of Maintenance (Manager) averred, �I feel [comparator-2
and comparator-3 are] better qualified.� To explain the circumstances
involved in complainant not being selected for the detail, the Manager
also stated, �I place [comparator-2] in the position because of her
knowledge and skills.� These statements, without more elaboration,
fail to provide complainant a full and fair opportunity to demonstrate
that the agency's explanation is pretextual. Furthermore, we note that
complainant has provided evidence that he was qualified to act as a
supervisor, namely he met the necessary requirements and has been placed
on the Associate Supervisor Program register.
Similarly, with respect to complainant's claim that custodial job
assignments were not equitably distributed, the Supervisor of Maintenance
Operations (Supervisor) testified:
Custodial job assignments are equitably distributed. Custodians other
than [complainant] are assigned to cut grass and do project work.
Job assignments are based on who is here, outside heat index, rain,
availability of equipment, etc.
Supervisor's testimony further reflects that, while Supervisor was
responsible for overseeing the distribution of the custodial job
assignments, the Group Leader, and not Supervisor, normally distributed
the daily job assignments. The ROI also contains a matrix with the
names of the three comparators, and the statement �[Supervisor] stated
that custodial jobs are being equitably distributed.� Supervisor's
statements and the matrix provide no insight whatsoever into what
types of custodial jobs the three comparators were doing or how often
the three comparators were tasked with doing odds and ends work,
such as floor/buffing maintenance, outside work, recycling, and work
case cleaning. Complainant admits that on a few occasions the three
comparators were seen doing odds and ends work, but he asserts that he and
a coworker were regularly assigned the less desirable jobs. Finally, the
Commission questions whether Supervisor was the appropriate management
official to question regarding daily job assignments in light of
Supervisor's testimony that the Group Leader distributed the daily jobs.
Since the agency has provided no other legitimate nondiscriminatory reason
for its actions with respect to issues (2) and (4), we find that the
agency's reasons fail to satisfy its burden, denying complainant a full
and fair opportunity to demonstrate that the agency's explanations are
pretextual. Therefore, in view of the evidence, the Commission concludes
that complainant has established his claim of race/national origin and
sex discrimination when he was nonselected to act as a supervisor in
May 2002, and his claim of race/national origin discrimination when
custodial job assignments were not equitably distributed.
With respect to issues (1), (3), (5), and (6), the Commission assumes
that complainant established a prima facie case of race, sex, and age
discrimination for purposes of analysis only. United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983) (Where
the agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to the
ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination.);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990). Therefore, the burden shifts to the agency to articulate
legitimate, nondiscriminatory reasons for its actions. we find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The agency stated that: with respect to issue (1), the position is a
modified rehabilitation position, not a vacant funded position, the duties
of which were created to accommodate comparator-1, an injured employee;
as to issue (3), complainant received overtime during his off days
of Tuesday and Wednesday because most overtime opportunities occurred
during the week; as to issue (5), no one was detailed to the position
since complainant was placed on the promotion eligibility register,
and complainant was scheduled to fill the position the weeks of May 18
and 25, 2002; and as to issue (6), the management official was unaware
of complainant's interest in detailing to the Postal Systems Coordinator
position, the detailee had already gone through the developmental phase
and was trained to conduct reviews, and the position was to be abolished
with the implementation of Shared Services.
Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returns to complainant to demonstrate that the
agency's articulated reasons are unworthy of belief. With respect to
issue (1), complainant contends that a black, female (female coworker)
in her mid-twenties was placed in the Maintenance Control Clerk job
vacancy before he was, and that comparator-1 was initially reassigned as
a �Clerk,� not a Modified Maintenance Control Clerk. We find, however,
that complainant failed to identify his female coworker in the complaint,
or to provide sufficient information for the Commission to determine
whether she is similarly situated to complainant. In addition, while
comparator-1 may have been reassigned as a clerk, the record reflects
that he was reassigned based upon his injury. As to issue (3), while
complainant contends that the only overtime he is receiving is Off Day
overtime, and not Prior or After overtime, he fails to rebut the agency's
assertion that, because most overtime opportunities occur during the
week, complainant was not being scheduled. Complainant asserts that
this is a violation of the Collective Bargaining Agreement (CBA). We,
however, note that a violation of the CBA is not necessarily evidence
of discriminatory intent. Moreover, complainant has not identified any
employees outside of his protected groups with a similar work schedule
to his who were given Prior or After overtime opportunities. Indeed, he
admits that a coworker with days off during the week is not given the same
Prior or After overtime opportunities as those coworkers with days off of
Saturday and Sunday. With respect to issue (5), complainant asserts that
the responsible management official (RMO) left these positions vacant
rather than detail complainant into the positions. Complainant also
maintains with respect to issue (6) that the agency fails to post or
announce temporary vacancies for the Mobile Area when vacancies occur,
and that favoritism occurs in assigning the details. We find that, as to
both issues (5) and (6), complainant has failed to prove that the RMOs'
decisions not to detail him into these positions or not to announce the
temporary vacancies were based upon a discriminatory animus against
complainant, nor has he otherwise provided evidence that the reasons
given lacked credibility. We therefore conclude that complainant has
failed to prove by a preponderance of the evidence that the agency acted
on the basis of discrimination as to issues (1), (3), (5), and (6).
Harassment
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
In the present case, the Commission finds that complainant has not
established that he was harassed on the bases of his race/national
origin, sex, or age. We do not find that the incidents identified
by complainant were pervasive or severe enough to significantly and
adversely alter the conditions of complainant's employment. We note
that, while complainant has proven that he was disparately treated with
respect to his nonselection for a detail in May 2002 and with respect to
the equitable distribution of job assignments, complainant has failed to
show that these same incidents altered the conditions of his employment
sufficiently to create an abusive working environment. Accordingly,
the Commission finds that complainant has failed to prove that he was
subjected to harassment on the bases of race/national origin, sex, or age.
Dismissal of Issue (7)
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Even where the original issue was withdrawn during EEO counseling, a
complainant may not file a second complaint where the complainant has
previously raised and withdrawn the issue. Rebello v. United States
Postal Service, EEOC Request No. 05980211 (June 24, 1999); Williams
v. United States Postal Service, EEOC Request No. 05950696 (December
19, 1996). It has long been established, however, that "identical"
does not mean "similar." The Commission has consistently held that in
order for a complaint to be dismissed as identical, the elements of the
complaint must be identical to the elements of the prior complaint in
time, place, incident, and parties. See Jackson v. United States Postal
Service, EEOC Appeal No. 01955890 (April 5, 1996), recons. granted, EEOC
Request No. 05960524 (April 24, 1997) (affirming decision cited above,
but reversing other allegations on unrelated grounds).
In the instant case, complainant filed his first formal complaint, Agency
No. 4-H-350-0080-02, alleging that he was harassed, and as of March 2002,
he had not been promoted to the position of Maintenance Support Clerk.
He then filed his second formal complaint, Agency No. 4-H-350-0161-02,
alleging, among other things, that he was not selected to act as a
supervisor, he was bypassed for overtime, he was denied a detail to
Maintenance Support Clerk position, and he was not detailed as Postal
Systems Coordinator. Complainant then filed his third formal complaint,
Agency No. 1-H-366-0006-03, alleging that he has not been detailed to
Maintenance positions and overlooked for overtime. We find that the
agency has shown that the issues in complainant's third complaint are
identical to those previously alleged in the second complaint. Therefore,
the Commission finds the agency's dismissal of issue (7) was proper.
CONCLUSION
Accordingly, the agency's FAD, Agency No. 4-H-350-0161-02, finding
no discrimination with respect to issues (2) and (4) is reversed,
and the agency's findings with respect to issues (1), (3), (5), (6),
and (7) are affirmed. The Commission hereby finds that complainant
was discriminated against on the bases of race/national origin and sex.
This case is remanded to the agency to take remedial action in accordance
with this decision and the order below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall provide complainant with the next available detail to
a supervisory position in his current craft.
To the extent that complainant would have received additional pay for
serving as an acting supervisor in May 2002, the agency, within sixty
(60) calendar days of the date this decision becomes final, shall award
complainant back pay and costs, with interest, for all wages and benefits,
if applicable, for losses incurred as a result of the agency's denial of
the TDY assignment. The agency shall determine the appropriate amount of
back pay, interest, and other benefits due complainant, pursuant to 29
C.F.R. � 1614.501(c). The complainant shall cooperate in the agency's
efforts to compute the amount of back pay, costs, and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay, costs,
and/or benefits, the agency shall issue a check to the complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall provide documentary evidence demonstrating that custodial
job assignments, including floor/buffing maintenance, outside work,
recycling, and work case cleaning, are being equitably distributed.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall conduct a supplemental investigation to determine whether
complainant is entitled to compensatory damages incurred as a result of
the agency's discriminatory actions. The agency shall allow complainant
to present evidence in support of his compensatory damages claim.
Complainant shall cooperate with the agency in this regard. Thereafter,
the agency shall issue a final decision. 29 C.F.R. � 1614.110(b).
The supplemental investigation and issuance of the final decision must
be completed within sixty (60) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below.
The agency shall provide training in the obligations and duties imposed
by Title VII to the agency official(s) involved in the decision not to
select complainant for the acting supervisor position in May 2002 and in
the inequitable distribution of custodial job assignments. This training
is not considered disciplinary action.
The agency shall consider taking disciplinary action against the
management official(s) identified as being responsible for the decision
to not select complainant for the aforementioned details and for the
inequitable distribution of job assignments. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of benefits due complainant, including evidence
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
POSTING ORDER (G0900)
The agency is ordered to post at its Mobile, Alabama facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___06-08-04_______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, Mobile, Alabama facility
confirms its commitment to comply with these statutory provisions.
The United States Postal Service, Mobile, Alabama facility supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Mobile, Alabama facility has been found
to have discriminated against an employee when the agency did not select
him to act as a supervisor in May 2002, and custodial job assignments were
not equitably distributed. The United States Postal Service, Mobile,
Alabama facility has been ordered to provide compensatory damages to
the affected employee and provide training regarding the obligations and
duties under Title VII to appropriate managers. The United States Postal
Service, Mobile, Alabama facility will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The United States Postal Service, Mobile, Alabama facility will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 We note that, although complainant contends that comparator-3 cannot
be identified as an Asian-Pacific Islander because she is from Bolivia,
he has not provided any evidence that this employee does not so identify
herself. We further note that complainant failed to establish a prima
facie case of age discrimination, as the comparator-2 and comparator-3
were close in age to complainant, thereby eliminating an inference of
discrimination.
2 Complainant failed to establish a prima facie of sex or age
discrimination because the three comparators he identified are members
of complainant's protected groups.