01984097x
01-05-2000
Michael E. Witt, )
Complainant, )
)
) Appeal No. 01984097
) Agency No. 4-H-390-1024-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Michael E. Witt (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of the
agency concerning complainant's claim that the agency violated Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. The appeal is accepted in accordance with EEOC Order No. 960,
as amended.<1>
The issue on appeal is whether the agency discriminated against
complainant on the bases of race (Caucasian) and sex (male) when,
on December 1, 1993, he was placed in a threatening and intimidating
situation when approached by the Officer-In-Charge (OIC).
Complainant filed a formal EEO complaint raising the issues stated above
and a formal investigation was conducted. Complainant requested
a final agency decision (FAD) without a hearing. The FAD found no
discrimination on either basis.
The agency found that complainant failed to establish a prima facie case
of race or sex discrimination. The agency found that complainant did
not prove that he was subjected to an adverse or unfavorable employment
action in connection with the alleged incident. The agency noted
that complainant had not shown that the alleged action had resulted
in monetary loss, disciplinary action or changes to his wages, hours,
or other conditions of employment. The agency also concluded that
complainant did not present evidence that illegal discrimination occurred.
The agency emphasized that the OIC denied, in sworn testimony, that the
alleged incident occurred as complainant described.
Complainant's complaint constitutes a claim of disparate treatment
and the agency properly analyzed it under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253-256 (1981). The Commission's analysis need not focus on the
establishment of the prima facie case where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
Washington v. Dept. of the Navy, EEOC Petition No. 03900056 (May 31,
1990).
Applying these legal standards, the Commission finds that the agency
correctly determined that complainant failed to prove, by a preponderance
of the evidence, that he was discriminated against because of his race
and sex. Complainant did not prove that the articulated explanation
regarding the OIC's alleged conduct was pretextual. Other than his own
account of the incident, complainant submitted no corroborating evidence,
other than testimony from a witness that he (the witness) heard a loud
conversation between complainant and the OIC. Conversely, the OIC
denied in sworn testimony that he had posed any physical threat to
complainant or had acted inappropriately. Another employee, a former
manager of the OIC, testified that, to her knowledge, the OIC's conduct
was not threatening or discriminatory. Finally, we note that appellant
submitted no contentions on appeal which might change the outcome of
our decision. Accordingly, we find that complainant failed to prove,
by a preponderance of the evidence, that he was discriminated against
on the bases of race and sex.
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:
Jan 5, 2000
DATE Carlton 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:
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 of 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.