01971824
04-08-1999
Vernon A. Duhamel, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vernon A. Duhamel v. United States Postal Service
01971824
April 8, 1999
Vernon A. Duhamel, )
Appellant, )
)
)
v. ) Appeal No. 01971824
) Agency No. 1B029103394
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 2, 1996, decision
finding that the agency did not discriminate against appellant based
on appellant's national origin, age or in retaliation for appellant's
prior protected activity, was proper.
Appellant contacted an EEO counselor on May 10, 1994, and alleged that
he was discriminated against on the bases of national origin (Irish),
age and in retaliation when:
1. He discovered that his name was posted on the public
bulletin board on May 3, 1994, as being "AWOL" when he was
actually told not to report to work.
2. He was retaliated against for prior EEO activity when he
received a Letter of Warning on May 31, 1994.
At the time of the alleged discriminatory event appellant worked at
the Providence Processing and Distribution Center as a transitional
(non-career) Motor Vehicle Operator. On May 3, 1994, appellant did
not report to work at his starting time of 5:30 A.M. Appellant's wife
initially called his supervisor to report that he would be late due to a
flat tire. At this time, appellant's supervisor allegedly told his wife
to tell appellant not to come in. Subsequently, appellant called his
supervisor to verify that he should not come in and the supervisor told
him to bring in a receipt from the tire place when he comes back to work.
When appellant reported to work the next day he saw his name with "AWOL"
listed next to it on the work schedule on the bulletin board. Appellant
alleges that this "AWOL" listing next to his name caused him humiliation,
embarrassment, ridicule by his co-workers and due to these events his
health has generally worsened. In addition, appellant alleges that
on May 31, 1994<1>, he was issued a Letter of Warning citing Failure to
Meet the Requirements of Your Position: Behavior and Personal Habits.
The Letter of Warning was issued on May 31, 1994, allegedly because
appellant was being loud and using offensive language in describing
other MVS drivers and the Postal Service.
An EEOC Administrative Judge held a hearing on the matter and recommended
a finding of no discrimination on the bases of national origin, age
and retaliation. In its final decision the agency concurred with the
administrative judge's finding of no discrimination.
The United States Supreme Court has firmly established the frame work by
which the factual issue of the agency's motivation is resolved in Title
VII complaints when unlawful disparate treatment is alleged and no direct
evidence of discrimination is available. A complainant must initially
establish a prima facie case of discrimination by demonstrating that
he was subjected to an adverse employment action under circumstances
which, if left unexplained, would raise an inference of discriminatory
motivation. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981); Furnco Construction Corporation v. Waters,
438 U.S. 567, 579-580 (1978). Once a complainant has established a
prima facie case, an employer may then rebut the inference of unlawful
discrimination by clearly setting forth through the introduction of
admissible evidence, a legitimate, non-discriminatory reason for its
actions that would support a finding that unlawful discrimination was not
the cause of the employment action. Burdine, 450 U.S. at 254-255; Furnco,
438 U.S. at 577-78. If the employer meets its burden of production, the
ultimate burden remains on the complainant to prove, by a preponderance
of the evidence, that the agency intentionally discriminated against the
complainant, i.e., that the reason given by the agency for it action
was not the true reason, but a pretext for unlawful discrimination.
See St. Mary's Honor Center v. Hicks, 509 U.S. 520, 510-512 (1993);
Burdine, 450 U.S. at 253; McDonnell Douglas Corporation v. Green, 411
U.S. 792, 804 (1973).
The Commission finds that appellant established a prima facie case of
discrimination based on national origin, age and retaliation. He has
shown that i) he belongs to several protected groups; ii) he was subjected
to disparate treatment; and iii) other employees outside of appellant's
protected groups were not similarly treated.
The Commission further finds that the agency has articulated a
legitimate, non-discriminatory reason for its action. In the first
allegation appellant's supervisor first said that he put up the wrong
list with "AWOL" listed next to appellant's name on accident when he
put up his personal list and not the public list. Second, appellant's
supervisor listed appellant as "AWOL" with the idea in mind to remove
it when appellant presented him with a receipt for the flat tire.
Appellant's supervisor was not satisfied with this receipt and thus
left appellant listed as "AWOL." In reference to the second allegation,
appellant's supervisor alleged that he did not know that appellant had
filed an EEO complaint and gave appellant a letter of warning because of
his actions. These reasons given by the agency are not discriminatory
based on appellant's national origin, age or retaliation.
We find that appellant did not prove that the agency's reasons were a
pretext for discrimination. None of the witnesses who testified at the
hearing or gave affidavits alleged that appellant's supervisor had ever
made any disparaging remarks toward appellant relating to his national
origin or age. What these witnesses do testify to is a personality
conflict between appellant and his supervisor. However, a personality
conflict does not establish discrimination. Therefore, appellant does
not provide sufficient evidence to establish that the agency discriminated
against him due to his national origin, age or retaliation.
Based on a thorough review of the entire record, and for the above-stated
reasons, it is the decision of the EEOC to AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 8, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 There is a discrepancy between the appellant and his supervisor as to
which date this event occurred. The appellant alleges that this event
occurred on May 31, 1994, and was issued the letter that day. However, the
date of the letter of the event is May 27, 1994. In the supervisor's
affidavit he alleges that the event occurred "on or about May 27, 1994."
However, the Administrative Judge found that appellant's supervisor's
testimony credible in that he issued the Letter of Warning because he heard
the appellant yelling and cursing. Therefore, the discrepancy in the date
of the letter is not material.