01a60874
04-05-2006
John W. Lees, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John W. Lees v. United States Postal Service
01A60874
April 5, 2006
.
John W. Lees,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60874
Agency No. 1G-701-0018-05
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal EEO complaint 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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was employed as a Custodian
at the agency's New Orleans Post Office in New Orleans, Louisiana.
On April 20, 2005, complainant filed a formal EEO complaint. Therein,
complainant claimed that he was discriminated against on the bases of race
(Caucasian), disability (unspecified), and age (D.O.B. 1/18/44) when:
(1) on December 29, 2004, he was sent home while he was working
overtime;
(2) on December 13, 2004, he was issued a Letter of Warning;
(3) on an unspecified date in January 2005, he found a black trash bag in
the parking lot and reported it to management as looking suspicious; and
(4) on June 30, 2004 and continuing, the Acting Supervisor would show
up in his work area and check on him.
On May 18, 2005, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Form EEO Complaint." Therein, the agency
accepted claims (1) and (2) for investigation. The agency dismissed
claims (3) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim, finding that complainant was not aggrieved regarding
the matters identified therein.
At the conclusion of the investigation of claims (1) and (2),
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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that complainant was not subjected to
unlawful discrimination when he was sent home while he was working
overtime and issued a Letter of Warning. The agency stated that it
articulated legitimate, non-discriminatory reasons for its actions.
Furthermore, the agency stated that complainant failed to show by a
preponderance of the evidence that the agency's articulated legitimate,
non-discriminatory reasons were pretext for discrimination.<1>
Claims (1) and (2)
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 complainant to prevail, she 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. See 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. See 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. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See 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).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its actions. The record contains an
affidavit from complainant's Supervisor. Therein, the Supervisor stated
that he was the deciding official to send complainant home while he
was working overtime on December 29, 2004 (claim (1)). Specifically,
the Supervisor stated that on December 29, 2004, he authorized overtime
for three custodians, including complainant. The Supervisor further
stated that he instructed the three custodians "to start cleaning the
large break area on the second floor. Then clean the small break area
on the second floor and then to clean the large break area on the first
floor." The Supervisor stated that when he supervised his work area,
he did not see complainant and another custodian on the first floor.
The Supervisor stated "when I found them I made a decision to send
them home." The Supervisor stated that he made the determination to
send complainant home "based on the fact that he was not in his assigned
work area."
The record also contains an affidavit from the Supervisor Maintenance
Operations (SMO). Therein, SMO stated that he was the deciding official to
issue complainant a LOW for improper conduct (claim (2)). Specifically,
SMO stated that complainant improperly filled out Form CA-17 and
secured medical services without authorization. SMO stated that upon
his return to work on November 17, 2004, (following an absence from work)
complainant submitted a CA-2a Federal Employee's Notice of Recurrence of
Disability and Claim for Continuation of Pay/Compensation for CA-17 Form,
Duty Status Report to an Acting Supervisor. SMO further stated that at no
time prior to November 17, 2004, did complainant report a re-occurrence
of a pre-existing injury or condition to any supervisor. SMO stated
that complainant was in violation of provision (e) of Section 661.3;
Sections 661.53 and 666.2 of the Employee and Labor Relations Manual
Handbook (ELM); and Part 5.1 of the HBK EL-505, Injury Compensation.
Furthermore, SMO stated that complainant's race, alleged disability and
age were not factors in his determination to issue complainant a LOW.
The record contains a copy of ELM 17.8, Section 661.3 "Standards of
Conduct." Therein Section 661.3 provides that "employees must avoid any
action, whether or not specifically prohibited by this Code, which might
result in or create the appearance of: Making a Postal Service decision
outside official channels (provision e)." The record also contains
a copy of ELM 17.8, Section 661.53 "Unacceptable Conduct." Therein,
Section 661.53 provides that "no employee will engage in criminal,
dishonest, notoriously disgraceful or immoral conduct, or other conduct
prejudical to the Postal Service. Conviction of a violation of any
criminal statute may be grounds for disciplinary action by the Postal
Service, in addition to any other penalty by or pursuant to statute."
Further, the record contains a copy of HBK-EL-505, Section 5.1
"Identifying a Recurrence of Disability." Therein, Section 5.1 provides
that "the employee must immediately notify his or her supervisor of
the recurrence of disability. The supervisor must immediately initiate
CA-2a, Federal Employee's Notice of Recurrence of Disability and Claim
for Continuation of Pay/Compensation."
Complainant has not shown that the agency's articulated reasons, as
discussed above, were a pretext for discrimination.
The Commission determines that the agency's final decision finding no
discrimination concerning claims (1) and (2) was proper and is AFFIRMED.
Claims (3) and (4)
Complainant claimed that he was discriminated against on the bases of
race, disability and age when on an unspecified date in January 2005, he
found a black trash bag in the parking lot and reported it to management
as looking suspicious (claim (3)); and on June 30, 2004 and continuing,
the Acting Supervisor would show up in his work area and check on him
(claim (4)). In its May 18, 2005 partial dismissal, the agency dismissed
claims (3) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1) finding that
complainant was not aggrieved.
Upon review, we agree with the agency that the alleged incidents do not
address a personal loss or harm regarding a term, condition or privilege
of complainant's employment as a result of the alleged incidents.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Therefore, we find that the agency properly dismissed
claims (3) and (4) for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1) .
Accordingly, the agency's dismissal of claims (3) and (4) was proper
and is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2006
__________________
Date
1The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.