Paul Wrightv.United States Postal Service 01992193 11-21-00 .Paul Wright, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01992193 (E.E.O.C. Nov. 21, 2000)

01992193

11-21-2000

Paul Wright v. United States Postal Service 01992193 11-21-00 .Paul Wright, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Paul Wright v. United States Postal Service

01992193

11-21-00

.Paul Wright,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01992193

Agency No. 1-G-772-0087-98

DECISION

On January 26, 1999, the Equal Employment Opportunity Commission

(Commission) received a Notice of Appeal from Paul Wright (hereinafter

referred to as complainant) with regard to his complaint of discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq; and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> At the time,

complainant was challenging the agency's decision not to expand the

scope of the investigation with regard to his complaint, and, thus, the

appeal was premature. Nevertheless, during the time that the appeal was

pending with the Commission, the agency issued a final decision dated

October 29, 1999. Thus, the Commission will exercise its discretion in

the matter and accept the appeal in accordance with 29 C.F.R. � 1614.405.

The issues on appeal are whether the agency correctly identified the issue

in the complaint, and whether complainant proved, by a preponderance

of the evidence, that he was discriminated against on the basis of his

disability (unspecified), and in reprisal for prior EEO activity when

he received a pre-disciplinary interview on June 9, 1998, which resulted

in a suspension.

Complainant filed a formal EEO complaint in August 1998, stating that he

received a suspension for being absent on June 7, 1998.<2> Complainant

asserted that, on his leave request form, he mistakenly indicated that

he would be absent on June 8 and June 9 instead of June 7 and June 8.

The agency accepted the complaint, and defined the issue raised therein

as concerning a pre-disciplinary interview which complainant allegedly

received on June 9, 1998, and a resulting suspension. In response

to complainant's letter concerning the scope of the investigation,

the agency, by letter dated January 6, 1999, notified complainant that

the investigation would concern the issue as stated in the letter of

acceptance. At the conclusion of the investigation, the agency provided

complainant with a copy of the investigative report and notified him

of his right to request an administrative hearing within 30 days.

Complainant failed to respond within the 30-day period. Thereafter,

the agency issued a final decision finding that complainant had not been

subjected to discrimination as alleged. It is from this decision that

complainant now appeals.

The Commission initially finds that the agency correctly identified

the issue raised in the underlying complaint. Specifically, the matter

raised with the EEO Counselor and in the formal complaint concerned the

actions surrounding complainant's absence from work on June 7, 1998.

While complainant advised the EEO Counselor that he had been subjected

to a conspiracy, complainant did not cite any other specific actions.

Further, after a careful review of the record, the Commission finds that

the agency correctly determined that complainant was not subjected to

discrimination. The complaint herein presents the issue of whether the

agency subjected complainant to disparate treatment on the bases of his

disability and prior EEO activity. McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), provides an analytical framework for proving employment

discrimination in cases in which disparate treatment is alleged. First,

complainant must establish a prima facie case by presenting enough

evidence to raise an inference of discrimination. McDonnell Douglas,

supra, at 802. The agency may rebut complainant's prima facie case by

articulating legitimate, nondiscriminatory reasons for its action, and

if the agency does so, complainant must show, by a preponderance of the

evidence, that the agency's reasons are a pretext for discrimination.

Id.

The Commission notes that the McDonnell Douglas analysis need not

be adhered to in all cases. In appropriate circumstances, when the

agency has established legitimate, nondiscriminatory reasons for its

employment decision, the trier of fact may dispense with the prima

facie inquiry and proceed to the ultimate stage of the analysis,

that is, whether the complainant has proven by preponderant evidence

that the agency's explanations were a pretext for actions motivated

by prohibited discriminatory animus. See United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711 (1983).

A review of the record reveals that the agency articulated a legitimate,

nondiscriminatory reason for the action at issue, specifically,

complainant's failure to report for work on June 7, 1998. Complainant

himself acknowledged that he listed the incorrect date on his leave

request form. Further, while the agency proposed to suspend complainant

for seven days, management officials represented that complainant

never served the suspension. According to the record, the matter was

resolved pursuant to a step 1 grievance action on July 15, 1998, with the

suspension being rescinded and expunged, and charges of leave without

pay being changed to sick leave as complainant initially requested.

Complainant failed to show that the agency's stated reasons were a pretext

for prohibited discrimination, or that the actions resulted from any

discriminatory animus on the part of the named management officials.

Accordingly, it is the decision of the Commission to AFFIRM the final

agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

__________________________________

Carlton M. Hadden, Director

Office of Federal Operations

_11-21-00_________________________________

Date

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 claimant, claimant's representative

(if applicable), and the agency on:

_________________________

Date

_________________________

1On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2It is noted that while complainant advised the EEO Counselor that

the action in question was also based upon his national origin (Native

American), and age (60) he did not include those bases in his formal

complaint. Therefore, the Commission considers those bases to have been

abandoned.