0120092105
08-27-2009
Kenneth J. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth J. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092105
Agency No. 4K230016508
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's decisions dated September 2, 2008 and March
13, 2009 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.
Complainant alleged that the agency discriminated against him on the
basis of race (Black) when:
1. On April 14, 2008 and several unspecified dates, the agency has met
complainant on his route and told him to hurry back to the station;
2. On unspecified dates, agency officials intimidate and harass him by
standing behind his case observing him case mail;
3. On April 22, 2008, and several other unspecified dates, complainant
has submitted requests to complete a split route which were denied and
4. On May 6, 2008, complainant was issued a Notice of No-Time Off 14-Day
Suspension.
At all times relevant to the issues in this complaint, the complainant was
employed as a carrier technician at the agency's facility in Portsmouth,
Virginia. The complainant alleges that his supervisor has harassed
and intimidated in as described in claims 1 and 2 above. In a decision
dated September 2, 2008, the agency determined that complainant failed
to state a claim of employment discrimination regarding claims 1 and 2.
Specifically, the agency found that complainant failed to demonstrate
how the agency's alleged conduct in claims 1 and 2 affected a term,
condition, or privilege of his employment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Upon review of the record herein,
the Commission finds that the agency's dismissal of claims 1 and 2 for
failure to state a claim was proper. Moreover we find that complainant
has failed to describe events in claims 1 and 2 that were so severe or
pervasive that they altered the conditions of complainant's employment.
Concerning claim 3, the agency found that complainant's request for route
assistance on April 22, 2008 was denied because his supervisor determined
that the volume of mail on that day did not justify complainant's
request. The agency indicated further that the agency official reached
the conclusion that route assistance was not necessary after consulting
the maximum time allowance for routing mail section of the agency's City
Delivery Carriers Duties and Responsibilities Handbook.
In claim 4, the agency indicates that on April 9, 2008, complainant
failed to follow instructions to return to the station by 4:15 p.m.
The agency indicates that complainant returned to the office late and used
38 minutes of unauthorized overtime that day. In addition, the agency
states that on several other occasions, complainant was instructed to
complete his route by a certain time based on male volume, but failed to
do so, thereby incurring unauthorized overtime. Complainant's supervisor
indicated that complainant's failure to follow instructions on April 9,
2009 warranted the issuance of a 14-day suspension.
At the conclusion of the investigation, complainant was informed
of the 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 failed to establish a prima
facie case of race discrimination as alleged. Specifically, the agency
found that complainant failed to identify similarly situated individuals
treated more favorably in similar circumstances. The agency further
determined that even assuming arguendo that the complainant established
a prima facie case of discrimination, the agency proffered legitimate
non-discriminatory reasons for its actions, and that complainant failed to
establish that the agency's reasons were a pretext for discrimination.
On appeal, complainant maintains previously expressed arguments that
the agency issued discipline to him and denied his request for route
assistance and issued discipline because of his race and treated him
differently than other similarly situated employees.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The Commission determines that the agency established legitimate
non-discriminatory reasons for its actions. Specifically, the agency
found that complainant's request for route assistance was not justified
based on the volume of mail on April 22, 2008. The agency also indicated
that complainant was issued a 14-day suspension for his failure to
follow specific instructions and for incurring unauthorized overtime.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Complainant has failed to demonstrate
that the denial of route assistance or the 14-day suspension were based
on any discriminatory animus toward complainant's race.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we find that the
agency's March 13, 2009 decision finding no discrimination with respect
to claims 3 and 4 was proper.
Accordingly, the agency's decision dismissing the instant complaint is
hereby affirmed for the reasons set forth herein.
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
August 27, 2009
__________________
Date
2
0120092105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092105