0120092359
09-21-2009
Vincent B. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vincent B. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092359
Agency No. 1G-753-0099-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's April 21, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Supervisor, Distribution Operations, EAS-17, at the agency's Dallas Processing & Distribution Center in Dallas, Texas
On November 26, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of sex (male) when:
1. on September 19, 2008, he was issued a Letter of Warning; and
2. he was harassed in that on September 22, 2008, his manager directed open, derogatory communication towards him over the two-way radio, referring to him as being incompetent and unable to manage his area of operations.
On December 10, 2008, the agency issued a partial dismissal. The agency accepted claim 1 for investigation. The agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding complainant was not aggrieved.
At the conclusion of investigation concerning claim 1, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On April 21, 2009, the agency issued the instant final decision.
In its April 21, 2009 final decision, the agency concluded that complainant failed to prove that he was subjected to discrimination concerning claim 1. The agency determined that complainant did not establish a prima facie case of sex discrimination. The agency further found that assuming, arguendo, that complainant established a prima facie case of sex discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The former Manager, Distribution Operations (M1) stated that he was the deciding official to issue complainant a Letter of Warning (LOW) "for unsatisfactory work performance for failing to run his unit at a satisfactory level of efficiency." M1 stated that the LOW "says on 8/30/08 [complainant] failed to insure his unit ran efficiently and it resulted in late dispatches, etc., as described in the letter of warning. The complainant's only answer at the pre-disciplinary hearing was 'OK.'"
M1 stated that complainant was in violation of Sections 666.1 and 666.5 of the Employee and Labor Relations Manual. The record reflects that Section 666.1 states "employees are expected to discharge their assigned duties conscientiously and effectively." The record further reflects that Section 666.5 states "employees must obey the instructions of their Supervisor."
Regarding complainant's assertion that he was treated differently from two female comparators when he was the only supervisor issued a LOW, M1 stated "I have never treated any employee any differently than the Complainant was treated if they engaged in unsatisfactory performance." M2 further stated that the two female comparators "had the same instructions as the Complainant and did not engage in as many repeat offenses regarding the clearing of the mail."
On appeal, complainant argues that the agency "has responded to this allegation with self-serving and glaringly incredible testimony of [a named Lead Manager, Distribution Operations] and [M1] and, as to the comparative data showing sex discrimination with no rebuttal whatever."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See 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. See 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. See 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 the instant case, we find that after a careful review of the record, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision concerning claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960, Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 21, 2009
__________________
Date
1 On appeal, complainant does not challenge an agency December 10, 2008 partial dismissal regarding claim 2. Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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