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.