Leroy Upshaw, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01976297 (E.E.O.C. Feb. 1, 2000)

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.