Ronald J. Daniels, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a03309 (E.E.O.C. Jul. 19, 2000)

01a03309

07-19-2000

Ronald J. Daniels, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald J. Daniels v. United States Postal Service

01A03309

July 19, 2000

Ronald J. Daniels, )

Complainant, )

) Appeal No. 01A03309

v. ) Agency No. 1H-301-0021-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination on the

bases of race (Black), and age (DOB: April 4, 1942) 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> Complainant alleges he

was discriminated against when on November 25, 1998, he was notified

that his request for reinstatement with the agency had been denied.

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 final agency decision (FAD).

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

former employee of the agency at the agency's facility in Atlanta,

Georgia. Complainant had been removed from service on April 4, 1986.

He had applied for reinstatement and been denied on three occasions

prior to the one at issue in this complaint. Complainant alleged that

he was discriminatorily denied reinstatement when he received the notice

of denial dated November 25, 1998.

Believing he was a victim of discrimination, complainant sought EEO

counseling and filed a complaint on January 26, 1999. At the conclusion

of the investigation, complainant requested a hearing before a Commission

Administrative Judge (AJ), but he subsequently withdrew that request

and instead requested that the agency issue a final agency decision on

the record.

Complainant claimed that two other individuals not of his protected

classes had engaged in similar offenses, and either were not fired

or were granted reinstatement. The agency concluded that complainant

failed to establish a prima facie case of race or age discrimination

because he presented no evidence that similarly situated individuals

not in his protected classes were treated differently than him under

similar circumstances. The agency found that there was no record of the

first named individual (C-1) ever having worked for the agency, and it

had no information about the second individual (C-2) ever having been

removed from the agency's service, concluding that complainant had not

shown that there were any individuals who were similarly situated to he.

It further stated that the agency had legitimate, non-discriminatory

reasons for not reinstating complainant, i.e. his prior removal from

the agency for just cause. Complainant had been removed on April 4,

1986 for �theft by taking�. The agency found that complainant had not

shown this reason to be pretext for discrimination.

The complainant raised no new contentions on appeal. The agency requests

that we affirm its FAD.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant

to prevail, he must first establish a prima facie case of discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration

was a factor in the adverse employment action. McDonnell Douglas,

411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978). The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met

its burden, the complainant bears the ultimate responsibility to persuade

the fact finder by a preponderance of the evidence that the agency acted

on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claims of discrimination, the agency

presented evidence that complainant had been previously removed from

the agency for just cause, when he was charged with and found guilty of

three counts of �theft by taking.� Based on his prior employment history

with the agency, complainant's request for reinstatement was denied.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for its action.

Since the agency articulated a legitimate, nondiscriminatory reason

for its action, the burden returns to the complainant to demonstrate

that the agency's articulated reason was a pretext for discrimination.

We find that complainant has failed to do so. Complainant did not show

that the agency had removed and reinstated either C-1 or C-2, and failed

to show that the agency official who denied his request for reinstatement

did so for discriminatory reasons. Beyond his conclusory statements that

the denial was due to discrimination, there is no evidence in the file

to show that this was the case. Therefore, the agency's determination

that complainant failed to establish that he was discriminated against

was correct.<2>

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-19-00

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

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 We find that the agency erred to the extent that it found that

complainant had not established a prima facie case of race or age

discrimination because he was unable to demonstrate that he was treated

less favorably than any similarly situated employee. We note that to

establish a prima facie case, complainant must only present evidence

which, if unrebutted, would support an inference that the agency's

actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not

necessary for the complainant to rely strictly on comparative evidence in

order to establish an inference of discriminatory motivation necessary to

support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,

116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);

Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).