01971236
12-02-1998
Johnny J. Gee, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
Johnny J. Gee v. United States Postal Service
01971236
December 2, 1998
Johnny J. Gee, )
Appellant, )
)
v. ) Appeal No. 01971236
) Agency No. 4G-770-1134-95
William J. Henderson, ) Hearing No. 330-96-8055X
Postmaster General, )
United States Postal Service )
(Southeast/Southwest), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning his complaint alleging that the agency
discriminated against him on the bases of race (Black), sex (male), age
(53), and religion (Baptist) on October 26, 1994, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., when he was given a seven-day suspension for violating an "open
door policy." The appeal is accepted by the Commission in accordance
with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against him as stated above. The agency accepted appellant's complaint,
conducted an investigation, and provided appellant with a copy of the
investigative report. Thereafter, all administrative procedures were
met for a hearing before an EEOC administrative judge (AJ). A hearing
was held, and the AJ issued a recommended decision on May 17, 1996,
finding no discrimination. The agency subsequently adopted the AJ's
decision in a final agency decision dated October 9, 1996.
Appellant was issued a seven-day suspension because he violated the
following agency policy:
All vehicle doors must be closed when traveling to and from the route,
when moving between park and relay points, and when entering or crossing
intersecting roadways. This includes the driver's side door, street-side
door and the cargo door.
Appellant was observed violating the above policy when he had all doors
of his vehicle open while crossing an intersection. Appellant contends
that his punishment for the above violation was harsh and discriminatory
when compared to other similarly situated employees who had committed
more egregious infractions.
The AJ found that appellant failed to establish that he was similarly
situated to the cited comparison employees. Thus, the AJ concluded
that appellant failed to establish a prima facie on all bases alleged.
Assuming, arguendo, if appellant had established a prima facie case on
any bases alleged, the AJ further determined that the agency articulated a
legitimate, nondiscriminatory reason for the suspension and that appellant
failed to successfully rebut the agency's explanation. Therefore, the AJ
ultimately concluded that appellant failed to prove, by a preponderance
of the evidence, that he was discriminated against as alleged.
Appellant's complaint constitutes a complaint of disparate treatment.
Therefore, the three-part analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U. S. 792 (1973),; and Texas Dept. Of Community
Affairs v. Burdine, 450 U.S. 248 (1981) applies.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the agency successfully rebutted any prima facie case that appellant
may have established by articulating a legitimate, nondiscriminatory
explanation for issuing appellant a seven-day suspension for the cited
infraction. We note that appellant does not dispute he committed the
infraction, rather he argues that he was not aware of the vehicle policy.
Additionally, we add that an agency is not required to impose discipline
with exacting uniformity. In determining whether the imposition of
discipline was motivated by discrimination, the Commission looks at the
totality of circumstances surrounding the alleged misconduct, including
the similarity of the offenses involved, the number of offenses, the
nature of offenses, the time period during which they occurred, and
the performance of the employee. See Reid v. Veterans Administration,
EEOC Appeals No. 01821940 (September 30, 1983); Request No. 05840035,
(September 13, 1984) (Request for reconsideration denied). Considering
the totality of the circumstances, the Commission finds that although
appellant's discipline may be perceived as harsh, it does not constitute
unlawful discrimination. See generally, Jackson v. City of Kileen,
654 F.2d 1181, 1186 (5th Cir. 1981) ("Title VII is not a shield against
harsh treatment at the workplace"); Page v. Bolger, 645 F.2d 227, 230-31
(4th Cir.), cert. denied, 454 U.S. 892 (1981). Therefore, we agree with
the AJ's ultimate recommended decision finding no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision finding no discrimination.
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. �l6l4.604(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:
Dec 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations