01976297
02-01-2000
Leroy Upshaw, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Leroy Upshaw v. United States Postal Service
01976297
February 1, 2000
Leroy Upshaw, )
Complainant, )
) Appeal No. 01976297
v. ) Agency No. 4-H-370-0067-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Complainant initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination based on race (Black), sex (male), age (DOB: 5/12/42),
and physical disability ("40% disability"/"back problems"), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e, et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621, et seq., and the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791, et seq.<1> Complainant alleges he
was discriminated against when, on October 24, 1996, he was issued a
letter of warning. The appeal is accepted in accordance with EEOC Order
No. 960.001.<2> For the following reasons, the agency's decision is
AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a letter carrier at the agency's North Station in Knoxville,
Tennessee. Complainant was issued a letter of warning on October 24,
1996 by the Supervisor of Customer Services (S1), for failure to perform
the functions of his position in an acceptable manner, based on extending
his lunch break, unauthorized deviation from his prescribed route, and
requesting overtime that was not warranted. See Record of Investigation
(ROI), Affidavit B at 5 (letter of warning). Specifically, S1 charged
that on September 26, 1997, complainant was assigned to route 1722 and
requested two hours of overtime, which was approved by another supervisor
(S2). ROI, Affidavit B at 2 (Affidavit of S1). At "10.55," complainant
clocked out to the street. Id. At "10.72," he clocked out his jeep and
left the Post Office. Id. At 11.75, S1 and S2 observed complainant's
vehicle at his home, approximately four miles in the opposite direction
of his route. Id. After they rang the doorbell, complainant came out
of his house and proceeded to the first stop on his route, arriving at
"11.92." Id. From the Post Office to the first stop of Route 1722 is
seven blocks, a trip that normally takes less than five minutes. Id.
When complainant returned to the Post Office he had used approximately
one hour and twenty minutes of overtime, "leading supervisors to believe
that he would have extended lunch even more to obtain the 2 hours of
overtime requested." Id.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on January 2, 1997.
Complainant attested that he had been off his route because he "had
an accident" and therefore "had to change clothes." ROI, Affidavit A
at 1.<3> Complainant contended that he told S1 what had happened but
was nonetheless disciplined. Complainant identified several other
employees whom he contended were of a different race, sex, age, and
disability status and did not receive letters of warning for similar
infractions. Complainant contended that he should have been given an
official discussion instead of a letter of warning.
At the conclusion of the investigation, the agency advised complainant
of his right to request a hearing before an EEOC Administrative Judge.
After not receiving a hearing request from complainant, see n.1, supra,
the agency issued a final agency decision.
The FAD concluded that complainant: (1) failed to establish a prima facie
case of race or sex discrimination because he failed to demonstrate
that similarly situated employees not in his protected classes were
treated differently than he under similar circumstances; (2) failed to
establish a prima facie case of age discrimination; and (3) failed to
demonstrate that he was an employee with a disability as defined under
the Rehabilitation Act.
The agency requests that we affirm its FAD.
We note at the outset two basic analytical errors in the FAD of which
the agency should take note. First, the FAD states that complainant
failed to establish a prima facie case of age discrimination because
he did not prove by preponderant evidence that his age was considered,
that it was a determining factor in management's decision, or that the
comparator employees were more favorably treated because of their ages.
This analysis improperly confuses the elements of a prima facie case with
complainant's ultimate burden of proof on the merits. A prima facie case
of age discrimination is established by showing that he is at least forty
(40) years old; he was subjected to adverse treatment; and a similarly
situated employee under forty, or someone who was also over forty but was
sufficiently younger than him to permit an inference of discrimination,
was treated more favorably. See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996); Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01961031 (October 25, 1996); Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
915.002 at 4 and 7 (September 18, 1996). If complainant establishes
a prima facie case, the burden of production shifts to the agency to
articulate a legitimate, non-discriminatory reason for the challenged
action, which complainant must then prove is pretextual. In an ADEA
case, the ultimate burden remains on complainant to demonstrate, by a
preponderance of the evidence, that age was a determinative factor in
the sense that, "but for" his age, he would not have been subjected to
the action at issue. McDonnell Douglas v. Green, 411 U.S. 792 (1973);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 06960344 (October 16, 1998).
Second, the FAD also stated that even assuming complainant is disabled
within the meaning of the Rehabilitation Act, complainant's disability
"had nothing to do with" his explanation for being off his route (that
he went home to change his clothes due to an accident). FAD at 5-6.
This inquiry is misguided. The proper inquiry is whether complainant
can demonstrate by preponderant evidence that his alleged disability
motivated management's disparate treatment of his infraction compared
to infractions committed by similarly situated non-disabled employees.
Thus, complainant's explanation for his infraction need not relate to
his disability, but rather is relevant if it tends to demonstrate that
management's explanation for the discipline issued is a pretext for
disability discrimination.
Nevertheless, after a careful review of the record in light of the
proper standards, the Commission agrees with the agency's conclusion
that complainant failed to establish a prima facie case of disparate
treatment based on race, sex, age, or disability. In reaching this
conclusion, we note that complainant has failed to establish that
similarly-situated employees outside his protected groups were treated
more favorably. Specifically, complainant asserts that several younger,
Caucasian, non-disabled employees have extended their lunch breaks or
been observed off of their routes, but have only received official
discussions rather than letters of warning. However, complainant
does not contend that any of these comparators were also charged,
as complainant was, with requesting overtime that was not warranted.
Thus complainant has not identified a similarly situated employee
outside his protected group who was treated more favorably. In order for
comparative employees to be considered similarly situated, all relevant
aspects of complainant's situation must be nearly identical to those
of the comparative employees. Tolar v. United States Postal Service,
EEOC Appeal No. 01965083 (December 16, 1998) (citing O'Neil v. United
States Postal Service, EEOC Request No. 05910490 (July 23, 1991)).
Moreover, all of the comparative employees identified by complainant are
the same sex as complainant, and thus even if they were treated more
favorably, this does not create an inference of sex discrimination.
See Kennedy v. United States Postal Service, EEOC Request No. 05970745
(April 2, 1999). Further, complainant has presented no other evidence
sufficient from which to draw an inference of discrimination on any
basis with respect to the issuance of the letter of warning.
With respect to the FAD's conclusion that complainant cannot establish a
prima facie case of disability discrimination for the additional reason
that he is not disabled within the meaning of the Rehabilitation Act, we
cannot resolve this issue on the present record. Although complainant
relies on the fact that he has a 40% veteran's disability status, this
does not necessarily establish that he is disabled under the Act.
Wood v. United States Postal Service, EEOC Request No. 05950624
(October 17, 1997). An individual with a disability is one who (1)
has a physical or mental impairment that substantially limits one or
more major life activities, (2) has a record of such impairment, or
(3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).<4>
Major life activities include caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Complainant stated in his investigative affidavit
that he had submitted medical documentation regarding his condition to
management on prior occasions, and therefore he did not resubmit it as
part of the instant investigation. The referenced documentation is not
included in the record. However, in light of our conclusion above that
even assuming complainant is disabled, he cannot establish a prima facie
case of disparate treatment on any basis, we need not resolve this issue.
Finally, we conclude that even if complainant established a prima facie
case of discrimination on any of his alleged bases, management articulated
a legitimate non-discriminatory reason for the letter of warning, namely,
that complainant extended his lunch break, engaged in an unauthorized
deviation from his prescribed route, and requested overtime that was not
warranted. Complainant retains the burden to prove by a preponderance
of the evidence that this proffered reason for the letter of warning
is not true, and that the real motive was discrimination. It is not
sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Complainant has not met this evidentiary burden.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
2/1/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant
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.
2 The Commission notes that complainant filed his notice of appeal
on August 6, 1997, prior to issuance of the FAD on November 4, 1997.
Complainant's notice of appeal stated he sought to appeal the issuance
of a FAD on July 2, 1997; however, the only item issued on that date
was the record of investigation. Attached to the notice of appeal was
a prior FAD dated February 5, 1997, which the agency had rescinded by
acceptance letter dated February 14, 1997. While the August 6, 1997
notice of appeal was premature, the Commission accepts it as timely since
the November 4, 1997 FAD did follow and complainant apparently made an
inadvertent error. Cf. Steinberg v. United States Postal Service, EEOC
Appeal No. 01961533 (February 5, 1998); Moody v. Department of Defense,
EEOC Appeal No. 01973115 (January 28, 1998).
3 No additional details appear in the record.
4 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.