01982575
08-29-2000
John W. Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John W. Harris v. United States Postal Service
01982575
August 29, 2000
John W. Harris, )
Complainant, )
) Appeal No. 01982575
v. ) Agency No. 4C-440-0333-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on
the bases of race (black), color (medium complexion), and age (56),
in violation of Title VII of the Civil Rights Act of 1964, 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.<1> Complainant
alleges he was discriminated against when: (1) the agency issued a Letter
of Warning (LOW) to him on February 24, 1997, for failing to take out
all available mail for delivery and failing to notify his supervisor
that there was undelivered/failed mail; and (2) the agency issued a
Notice of Suspension for Seven Days (NOS) to him on March 16, 1997,
for failing to scan the attempted/failed deliveries. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
AFFIRMS the final agency decision.
The record reveals that during the relevant time, complainant was employed
as a PS-05 Special Delivery Messenger at the agency's Cleveland, Ohio
Post Office facility. Complainant alleged that the Special Delivery
Supervisor (white female) discriminated against him based on his race,
color, and age. On February 24, 1997, five Special Delivery Messengers
were disciplined for the same offenses: failing to take out all available
mail for delivery, and failing to notify the supervisor that there was
undelivered/failed mail. The race, age, and color of employees is as
follows: (1) C1 is a 39 year old white male; (2) C2 is a 41 year old
white male; (3) C3 is a 50 year old black male with a dark complexion;
(4) C4 is a 40 year old black male with a medium complexion; and (5)
Complainant is a 56 year old black male with a medium complexion. In the
complaint, complainant claims that the agency unfairly disciplined him
when it reduced the penalty for all of the employees but him. Moreover,
with regard to the second offense of failing to scan the attempted/failed
deliveries, complainant asserts that the agency failed to train him
properly to perform the task and that his punishment was unfairly
high due to the progressive discipline following the first offense.
Complainant concludes that if the agency had reduced his discipline in
the first offense to an official discussion, he would received only an
official discussion or a LOW, at the most, for the second offense rather
than a seven-day suspension.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on June 5, 1997. At the
conclusion of the investigation, complainant received the file and hearing
rights but failed to respond regarding his right to a hearing or a final
agency decision. As such, the agency issued a final agency decision.
The final agency decision concluded that complainant failed to establish
a prima facie case of discrimination because he presented no evidence
that similarly situated individuals not in his protected classes were
treated differently under similar circumstances. In particular, the
decision stated that the comparative employees were within and outside
complainant's protected classes, and C4 (black/medium complexion/age 40)
did not have the LOW reduced to a discussion as complainant alleged.
Moreover, the decision found that the agency had articulated a legitimate,
nondiscriminatory reason for its actions. As to the first offense,
the agency stated that complainant, C2, C3, and C4 each received a LOW
for the same offense; however, C1 received a seven-day suspension as
progressive discipline. The agency claimed that it reduced the LOW to an
official discussion for C2 and C3 and reduced C1's seven-day suspension
to a LOW for two years, because those employees admitted that they were
wrong. Since complainant and C4 refused to admit to their wrongdoing,
the agency did not change their penalty. With respect to the second
offense, the agency stated that complainant had been advised of, and
trained to perform, the duty of scanning the attempted/failed deliveries.
Since complainant admitted that he did not perform the duty on March 20,
1997, the agency relied upon progressive discipline to issue a seven-day
suspension, which was ultimately reduced to a LOW for six months through
the grievance process on March 31, 1997. The decision concluded that
complainant failed to show the agency's reasons constituted a pretext
to mask prohibited discrimination.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. Complainant states that C1 had prior discipline
but complainant did not. Complainant also alleges that C4 is fifteen
years younger than complainant and that C4's LOW will not stay in his
record for two years. The agency requests that we affirm its final
agency decision.
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that he belongs to a statutorily protected class
and that he was accorded treatment different from that accorded persons
otherwise similarly situated who are not members of the class. Comer
v. Federal Deposit Insurance Corporation, Request No. 05940649 (May
31, 1996) (citing Potter v. Goodwill Industries of Cleveland, 518 F.2d
864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated, all relevant aspects of the employees'
work situation must be identical or nearly identical. Godby v. Department
of the Treasury, EEOC Request No. 05960220 (May 7, 1998) (citing Smith
v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985). Thus, in
order to be similarly situated, comparative employees must have reported
to the same supervisor, been subjected to the same standards governing
discipline, and engaged in conduct similar to complainant's without
differentiating or mitigating circumstances. Jones v. Department of
the Interior, EEOC Request No. 05950175 (June 7, 1996) (citing Mazzella
v. RCA Global Communications Inc., 642 F. Supp. 1531 (S.D.N.Y. 1986),
aff'd, 814 F.2d 653 (2nd Cir. 1987).
A prima facie case of age discrimination is established by showing
that complainant is at least forty (40) years old; he was subjected
to adverse treatment; and a similarly situated employee under forty,
or someone who was also forty but was sufficiently younger than him
to permit an inference of discrimination, was treated more favorably.
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 808 (1996).
If complainant established a prima facie case, the burden of production
shifts to the agency to articulate a legitimate, non-discriminatory
reason for the challenged action, which complainant must then prove is
pretextual. In an ADEA case, the ultimate burden remains on complainant
to demonstrate, by a preponderance of the evidence, that age was a
determinative factor in the sense that, �but for� his age, he would not
have been subjected to the action at issue. Fodale v. Department of
Health and Human Services, EEOC Request No. 06960344 (October 16, 1998).
After reviewing the record in this case, the Commission finds that
complainant has established a prima facie case of discrimination.
Complainant, who is black with a medium complexion and over the age of 40,
belongs to three statutorily protected classes (race, color, and age),
and he was accorded treatment different from similarly situated persons
who were not members of his protected classes (C1 and C2). In particular,
all of the comparative employees performed the same duties, reported to
the same supervisor, violated the same rules of conduct, and initially
received the same disciplinary action, except for C1 whose penalty was
higher due to progressive discipline. In response to complainant's
claim of discrimination in the first offense, the agency articulated a
legitimate non-discriminatory reason for reducing the discipline for C1,
C2, and C3, namely, that those employees admitted they violated the rules
and that complainant and C4 refused to admit to any wrongdoing. As to the
second offense, the agency stated that complainant had been advised of and
trained to perform the duty of scanning the attempted/failed deliveries,
and he admitted that he did not perform that duty on March 20, 1997.
The Commission finds that complainant failed to present a preponderance
of the evidence that the agency's articulated reasons for its actions
were a pretext for discrimination. Complainant retains the burden to
prove by a preponderance of the evidence that the agency's proffered
reasons for disciplining him are not true, and that the real motive
was discrimination. It is not sufficient �to disbelieve the employer;
the fact finder must believe the plaintiff's explanation of intentional
discrimination.� St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993). As evidence of pretext for discrimination, complainant alleges
that C1's discipline was different due to prior discipline and C4's LOW
will not stay in his record for two years because he is fifteen years
younger than complainant. In considering the first offense, complainant
has not rebutted the fact that the three employees who received a
reduced penalty each admitted to the wrongdoing, while he and C4 did not.
Moreover, complainant has not explained how his supervisor's motive was
discriminatory when she reduced the penalty for C3, who is black with
a darker complexion than complainant and only six years younger than
complainant. With regard to the second offense, complainant admitted
that he should have performed the scanning duty and failed to mention
that the agency ultimately reduced the seven-day suspension to a LOW for
six months. Since complainant has not presented any evidence that his
supervisor treated him in a disparate manner due to his race, color, or
age, he has not met his evidentiary burden. Therefore, 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 final agency decision.
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:
August 29, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On 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.