Sidney Baker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny Area), Agency.

Equal Employment Opportunity CommissionSep 5, 2000
01990926 (E.E.O.C. Sep. 5, 2000)

01990926

09-05-2000

Sidney Baker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny Area), Agency.


Sidney Baker v. USPS

01990926

September 5, 2000

.

Sidney Baker,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Allegheny Area),

Agency.

Appeal No. 01990926

Agency No. 4C440049597

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

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>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that he was discriminated against on the bases of his race

(African American), sex (male) and age (D.O.B.: November 28, 1945) when:

(1) on August 25, 1997, he was denied overtime;

on September 8, and September 9, 1997 he was required to work six hours

and fifteen minutes before receiving a lunch break;

on September 9, 1997, he was not allowed to go to the Window Services

Technician, grade PS-06 (T-6) meeting;

on September 15, 1997, he told the Postmaster that he had a job-related

foot problem and she refused to take him to the doctor until the next

day;

on September 23 and September 25, 1997, he worked six hours and twenty

minutes before receiving a lunch break; and

on an unspecified occasion, he was not allowed to work as a T-6.

BACKGROUND

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

as a Window Clerk (PS-5) at the agency's Wickliffe, Ohio facility.

Believing he was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on October 27, 1997.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. When complainant

failed to respond within the time period specified in 29 C.F.R. � 1614,

the agency issued a final decision. In its FAD, the agency concluded that

complainant failed to establish that he was discriminated against. From

this FAD, complainant now appeals.

ANALYSIS AND FINDINGS

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue), the Commission agrees with the agency that complainant

failed to establish a prima facie case of discrimination. However, while

the initial inquiry in a discrimination case usually focuses on whether

the complainant has established a prima facie case, following this order

of analysis is unnecessary when the agency has articulated a legitimate,

nondiscriminatory reason for its actions. See Washington v. Department

of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,

the inquiry shifts from whether the complainant has established a

prima facie case to whether he has demonstrated by preponderance of the

evidence that the agency's reasons for its actions merely were a pretext

for discrimination. Id.; see also United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

ISSUE 1

Complainant contends that his supervisor (Postmaster: African American,

female, 42 years-old) approved overtime for a co-worker who was not

on the overtime list. Complainant argues that he was on the overtime

list and should have been given priority to earn overtime. The agency

responds stating that complainant failed to identify the employee who

was granted overtime. The Postmaster indicated that she does not recall

the incident. The Postmaster revealed that she sometimes requests

overtime from employees who are not on the overtime list, depending on

the employee's duty hours and assignment. The agency denies that it

discriminates in awarding overtime.

ISSUE 2 and 5

Complainant contends that on September 8, 9, 23 and 25, 1997, he was

required to work over six hours without lunch. The agency indicates

that complainant voluntarily accepted a work schedule with a lunch break

occurring six hours after he reports to work. Complainant advances

other window clerks as comparators. The record reveals that the other

window clerks have scheduled lunch breaks approximately three hours after

their shifts begin. According to the Postmaster's affidavit, agency

policy requires that two window clerks be on duty during the lunch hour.

The record also reveals that from time to time complainant is given tasks

which require him to work fifteen minutes or so into his scheduled lunch

break. However, the record reveals that working during a scheduled lunch

break, as the work requires, is commonplace among agency employees.

ISSUE 3

Complainant indicates that he was not allowed to go to a T-6 meeting.

The Postmaster indicates that no T-6 meeting was held, but that she

selected another employee (CW1: Caucasian, female, over forty years old)

to attend an On-the-Job-Trainer meeting. The Postmaster further indicated

that she selected CW1 because she had greater experience than complainant

and because she previously completed a course on how to train others.

ISSUE 4

The Postmaster acknowledged that she did not immediately take complainant

to the doctor when he complained of foot pain. The record reveals that

the Postmaster did immediately take a letter carrier (CW2: Caucasian,

male) to the hospital after he was bitten by a dog on his delivery route

and required medical attention. However, CW2 and complainant were not

similarly situated. The record reveals that complainant's ailment was

not an on-the-job emergency and was secondary to scheduled surgery to

remove a bunion from his foot. The record reveals that when complainant

reported that he continued to experience pain, the Postmaster took him

to the doctor.

ISSUE 6

Complainant indicates that the Postmaster denied him the right to perform

the duties of a Window Services Technician, grade PS-6. The agency

responds saying that complainant is correctly classified as a Window

Clerk PS-5, and that he therefore has no entitlement to work as a Window

Services Technician, grade PS-6.

For each of these specific incidents the agency proffered a legitimate,

nondiscriminatory reason for the challenged action. The Commission finds

that complainant failed to present evidence that more likely than not,

the agency's articulated reasons were a pretext for discrimination.

In so finding we note that complainant has not submitted evidence that

the agency's articulated reasons are a pretext for discrimination. In the

case of complainant's age discrimination claim, we find that complainant

has failed to establish that complainant's age was the determinative

factor in the challenged agency actions. We have also considered the

totality of complainant's claim and we have determined that he failed

to establish discrimination on the basis of sex, race and/or age.

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.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 5, 2000

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 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.