0120070698
01-16-2009
Keilan C. Reese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Keilan C. Reese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120070698
Agency No. 4F-900-0062-06
DECISION
On November 18, 2006, complainant filed an appeal from the agency's
October 12, 2006 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Carrier Technician at an agency facility in Los Angeles, CA.
On March 8, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African American), sex
(male), color (Black), and in reprisal for prior protected EEO activity
under Title VII when:
(1) On November 3, 2005, complainant's OPT1 assignment at the Barrington
Station ended; and
(2) On November 5, 2005, complainant was not paid for approved FMLA.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination and reiterates arguments made below. In response, the
agency argues that complainant's appeal should be dismissed as untimely.
In the event that the appeal is deemed timely, the agency urges the
Commission to affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Timeliness of the Appeal
We first address the agency's claim that the appeal should be dismissed
as untimely. EEOC regulations provide that the Commission shall dismiss
an appeal from a final agency decision as untimely if the appeal is
not filed within thirty (30) days of receipt of the agency's dismissal,
final action, or decision. See 29 C.F.R. � 1614.402(a); 29 C.F.R. �
1614.403(c). A review of the record reveals that complainant received
a copy of the agency's final decision on October 20, 2006. Complainant
subsequently filed the instant appeal on November 18, 2006, which was
within the 30 day limitation period. Therefore, we deem complainant's
appeal timely.
Disparate Treatment Claims
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. 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). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
race, sex, color or reprisal discrimination, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
With respect to claim (1), the Manager, Customer Services indicated that
complainant was removed from his OPT route, and ordered to report to a
new bid assignment, because he had determined that the OPT was invalid.
Regarding claim (2), the Supervisor, Customer Services indicated that
complainant was not paid for approved FMLA leave on several occasions
because he had not yet submitted appropriate documentation.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Upon review, we concur with the agency's determination
that complainant failed to establish pretext. We find that the record
is devoid of any evidence that the agency's actions were motivated by
discriminatory animus. Although complainant challenges the credibility
of the statements submitted by management officials in the record,
he did not request a hearing in a timely manner, and the Commission is
limited to a review of the record evidence. As a neutral party, we are
not persuaded, based on the record of investigation, that complainant
has shown that the agency's articulated reasons for its actions were
a pretext for unlawful discrimination based on race, sex, color, or
retaliation for prior protected EEO activity.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or a retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 16, 2009
Date
1 "OPT" refers to opting into a temporary vacancy in a full-time duty
assignment. The opting procedure allows carriers to "hold down" vacant
duty assignments of regular carriers who are unavailable to work for
five or more days.
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0120070698
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070698