01975223
03-31-2000
Steven M. Bowe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven M. Bowe v. United States Postal Service
01975223
March 31, 2000
.
Steven M. Bowe,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01975223
Agency No. 1F-946-1087-96
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the agency's decision is AFFIRMED.
BACKGROUND
During the period in question, complainant was employed as a PS-5
Distribution Clerk at the agency's Processing and Distribution Center
in Oakland, California. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently filed a complaint
on July 19, 1996 alleging that the agency discriminated him on the bases
of sex (male) and reprisal (prior EEO activity) when on May 31, 1996:
(1) he received a Notice of Fourteen (14) Calendar Day Suspension for
Conduct Unbecoming a Postal Employee, Absence Without Permission and
Unsatisfactory Performance; and
(2) he received a Notice of Emergency Suspension of 30 Days or Less for
Threatening Violence Towards a Supervisor.
The record reveals that complainant was named as a comparison employee
in the EEO complaint of his girlfriend, a PS-4 Mailhandler at the
Oakland Processing and Distribution Center, filed on April 17, 1996
(Agency No. 1F-946-1054-96). The record also reveals that on May 27,
1996, complainant left his distribution case and stopped by a coworker's
case, engaging her in conversation. When the coworker dropped a letter,
complainant reached down to pick it up. Complainant's supervisor
walked over to him and told him to return to his case. When complainant
explained that he was picking up the letter, the supervisor said that
he was nevertheless out of his assignment. Complainant allegedly looked
angrily at the supervisor, pointed his index finger at her and said,
"You'd better leave me alone."
Later that day, the supervisor had taken the coworker into a first
floor office to have her write a statement about the earlier incident,
when complainant entered the office. Complainant allegedly glared at the
supervisor and coworker and then turned and left the office. The coworker
corroborated the allegation that complainant had entered the office. The
supervisor alleged that complainant was not authorized to enter the office
at that time. As a result, the supervisor issued complainant a Notice
of Fourteen (14) Calendar Day Suspension for Conduct Unbecoming a Postal
Employee, Absence Without Permission and Unsatisfactory Performance.
The same day, complainant allegedly repeatedly said in a singsong voice,
"Somebody's gonna get it." The supervisor alleged that she met with him
in an office and instructed him not to make the sucking noise he had been
making whenever aforementioned coworker was near him. She alleged that
the connotation was that the coworker was "sucking up" to the supervisor
because she was a witness to the earlier incident. Complainant allegedly
later said to the supervisor, "Do you drive a blue Prizm?" When the
supervisor responded in the affirmative, complainant allegedly said,
"I just wanted to know." The supervisor claimed that the incident was
a threat and an attempt to intimidate her. As a result, complainant
was given a "Notice of Emergency Suspension for 30 Days or Less for
Threatening Violence Towards a Supervisor." Complainant subsequently
received a Notice of Proposed Removal and a Letter of Decision removing
him from the Postal Service, effective September 9, 1996.
At the conclusion of the investigation, the agency informed complainant
of his right to request either an EEOC administrative hearing or an
immediate FAD. Complainant did not request a hearing, and the agency
therefore issued a FAD dated March 27, 1997, finding that complainant
had not been discriminated against. The FAD concluded that complainant
failed to establish a prima facie case of sex discrimination because
he failed to establish that he was treated differently than similarly
situated individuals not within his class. The FAD also stated
that even assuming that complainant was able to establish a prima
facie case of discrimination, the agency articulated a legitimate,
non-discriminatory reason for its actions, which complainant failed
to show was pretextual. Regarding the retaliation allegation, the FAD
stated that complainant had participated in a Title VII proceeding
and had received adverse treatment from the employer contemporaneously
with or subsequent to such participation, but that there was no causal
connection between the protected activity and the adverse treatment. It
is from this decision that complainant now appeals. [PAGE 3]
On appeal, complainant denies making the alleged statements and threats
against his supervisor. He also alleges that three female employees
engaged in verbal threats regarding physical contact similar to those
he allegedly made and received notices of proposed removal from the same
supervisor. However, he contends that unlike those that he received, the
notices received by the female employees were rescinded by the supervisor
and the Managing District Officer, and the females only received a
five-day suspension. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Under the three-part evidentiary scheme established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), complainant has
the initial burden of establishing a prima facie case of discrimination,
i.e., he must put forth facts which if true and unrebutted would create
an inference of discrimination. If complainant meets this burden,
the burden then shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Complainant
must then prove, by a preponderance of the evidence, that the legitimate
reason articulated by the agency was not its true reason, but was rather a
pretext for discrimination. Id. at 256; St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
Regarding his sex discrimination claim, complainant may establish a
prima facie case by showing: (1) that he is a member of a protected class
under Title VII; (2) that he was subjected to adverse treatment or was
denied an employment benefit or opportunity by the agency; and (3) that
similarly situated individuals not in his protected class were treated
more favorably. O'Neal v. United States Postal Service, EEOC Request
No. 05910490 (July 23, 1991). Complainant may also present other evidence
sufficient from which to draw an inference of discrimination. The record
is undisputed that complainant is a member of a protected class and that
he received adverse treatment by the agency. In his appellate statement,
complainant provided for the first time, the names of three similarly
situated female employees whom he claims were treated more favorably
than him. While complainant provided no evidence that the named female
employees were treated more favorably, we will assume that complainant
has met his initial burden of establishing a prima facie case of sex
discrimination.<2>
Although complainant established a prima facie case, the agency provided
a legitimate, non-discriminatory reason for its action. Specifically,
the agency showed that complainant threatened and attempted to intimidate
his supervisor. Complainant failed to prove by a preponderance of the
evidence that this reason was a pretext for discrimination. Accordingly,
we find that complainant has not established that he was discriminated
against as alleged.
Regarding his claim of discrimination based on retaliation, complainant
must establish a prima facie case by showing: (1) that he engaged in
protected EEO activity; (2) that the agency was aware of the protected
activity; (3) that he was subsequently subjected to adverse treatment
by the agency; and (4) that there was a causal connection between
the protected activity and the adverse action. See Paula Coffman
v. Department of Veterans Affairs, EEOC Request No. 05960473 (November
20, 1997); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 42 F. Supp. 318, 324 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st
Cir. 1976). A causal connection may be inferred from the closeness in
time between the protected activity and the adverse employment action. See
Frye v. Department of Labor, Request No. 05940764 (December 15, 1994).
Applying this to the facts of the instant case, complainant
has established a prima facie case of discrimination based on
retaliation. Complainant was listed as a comparison employee in the
EEO complaint of his girlfriend filed on April 17, 1996, and the agency
was aware that he had been included. He was subsequently subjected to
adverse treatment by the agency on May 31, 1996, when he received the two
disciplinary notices. A causal connection between the protected activity
and the adverse action may be inferred because of the closeness in time
between the filing of his girlfriend's EEO complaint and the issuance
of complainant's disciplinary notices.
However, the agency provided a legitimate, non-discriminatory reason for
its actions in that complainant threatened and attempted to intimidate
his supervisor. Complainant failed to prove by a preponderance of evidence
that the reason presented was a pretext for discrimination. Specifically,
we find complainant's belated attempts to cite comparative employees
for the first time on appeal to be unpersuasive. Accordingly, we find
that complainant has not established that he was discriminated against
as alleged.
CONCLUSION
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.<3>
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).
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, [PAGE 6] 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
March 31, 2000
__________________
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 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.
2In this regard, we note that complainant failed to respond during the
investigation to the agency investigator's request for an affidavit.
3While his appeal was pending, complainant submitted a letter from his
psychologist stating that complainant had been receiving treatment since
May 8, 1997 to help him abstain from alcohol use and deal with problems
stemming from the termination of his job. While the letter may be an
attempt to raise the issue of compensatory damages, we need not address
that issue because we affirm the agency's finding of no discrimination.