Wallace Twitty, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 7, 2005
01a41591 (E.E.O.C. Mar. 7, 2005)

01a41591

03-07-2005

Wallace Twitty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Wallace Twitty v. United States Postal Service

01A41591

March 7, 2005

.

Wallace Twitty,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A41591

Agency No. 1H-321-0001-02

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 Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

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

During the relevant time, complainant was employed as a Flat Sorter

Machine Operator at the agency's Tallahassee, Florida Processing

and Distribution Center. Complainant filed a formal EEO complaint

on December 3, 2001, claiming that he was discriminated against on

the bases of race (African-American), sex (male), color (black), and

disability (knee injury) when on September 4, 2001, he was denied the

opportunity to see a shop steward.<1>

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. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of discrimination on any alleged basis. Specifically,

the agency found that complainant was unable to demonstrate that similarly

situated employees not in complainant's protected classes were treated

more favorably than complainant. The agency requests that we affirm

its FAD.

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

411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health

for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)

(analyzing a disparate treatment claim under the Rehabilitation Act);

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);

and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to reprisal cases), the Commission agrees

with the agency that complainant failed to establish a prima facie case

of discrimination on any alleged basis because complainant failed to

identify any similarly situated employees who were treated more favorably

than complainant when he was denied the opportunity to see a shop steward.

Moreover, we find that complainant has failed even to identify an adverse

employment action by the agency in this matter. Specifically, the

evidence of record indicates that complainant indeed saw a shop steward

on September 4, and 5, 2001. According to record evidence provided by the

agency, clock rings for the relevant time period reveal that on September

4 and 5, 2001, complainant's clock moved to �Operation 607" identified

by the agency as designated union time. On appeal, complainant fails

to offer any persuasive evidence in support of his claim that the agency

denied him the opportunity to see a union steward on September 4, 2001.

In order to establish a prima facie case of discrimination, complainant

must show (1) he belonged to the claimed protected class; (2) he was

subjected to an adverse employment action; and (3) he was treated less

favorably than similarly situated employees who are not members of the

protected group. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973). Here, we find that complainant has failed to meet the

second and third prongs of the McDonnell Douglas test. Specifically,

we find that complainant was not subjected to any adverse agency action,

nor was he treated less favorably than any similarly situated employees

identified by complainant herein.

Therefore, after a careful review of the record, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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

March 7, 2005

__________________

Date

1The Commission presumes for purposes of analysis only, and without so

finding, that complainant is an individual with a disability.