Larry Barton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionApr 7, 2000
01990069 (E.E.O.C. Apr. 7, 2000)

01990069

04-07-2000

Larry Barton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.


Larry Barton v. United States Postal Service

01990069

April 7, 2000

Larry Barton, )

Complainant, )

)

v. )

) Appeal No. 01990069

William J. Henderson, ) Agency No. 1F915000198

Postmaster General, )

United States Postal Service )

(Pacific/Western Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of race (Black) in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges he

was discriminated against when he was suspended from work for seven days.

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 FAD.

The record reveals that during the relevant time, complainant was employed

as a Motor Vehicle Operator, at the agency's North Lincoln Avenue,

Pasadena, California facility. While operating an agency-owned vehicle

on duty, complainant was involved in an accident. It is undisputed that

complainant drove the vehicle in the wrong direction over a row of tire

spikes resulting in four flat tires. As discipline, complainant was

suspended from work for seven days.

Believing himself to be a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a complaint on October 7, 1997.

At the conclusion of the investigation, complainant did not exercise

his option to a hearing. Accordingly, the agency issued a FAD on the

basis of the investigation.

The FAD concluded that complainant failed to establish a prima facie

case of race-based discrimination because he presented no evidence that

similarly situated individuals not in his protected classes were treated

differently under similar circumstances. The FAD found alternatively

that the agency had articulated a legitimate, nondiscriminatory reason

for its action which complainant had failed to prove to be a pretext

designed to conceal discriminatory animus.

From the FAD, complainant brings the instant appeal.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and its progeny, Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981) and St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission agrees with

the agency that complainant failed to establish a prima facie case

of race-based discrimination. In reaching this conclusion, we note

that each of the comparator employees complainant identified worked in

different locations and in different crafts than complainant.

The Commission further finds that complainant failed to prove by a

preponderance of the evidence that the agency's articulated reasons for

its actions were a pretext for discrimination. Complainant adduced no

evidence whatever to call into question the propriety of the agency's

disciplinary action.

Therefore, after a careful review of the record, we affirm the FAD.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

April 7, 2000

Date Carlton M. Hadden, Acting 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.