01993941
02-15-2000
William C. Butler, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
William C. Butler, )
Complainant, )
) Appeal No. 01993941
) Agency No. 4D-230-0080-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his 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., the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant received the final agency decision (FAD) on April 2, 1999 and
he filed his appeal on April 16, 1999. Accordingly, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against
complainant because of his race (African American), age (59) and
disability (disabled veteran) when it suspended him for a period of
seven calendar days.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a custodian, at the agency's Midlothian, Virginia facility. On
September 26, 1997 the complainant was issued a seven day suspension for
improper conduct. Complainant and agency agreed to hold the suspension
in abeyance, conditioned on the complainant's good conduct. Agency now
argues that on November 4, 1997 complainant violated the agreement when
he again behaved in a loud and verbally abusive manner. Complainant's
supervisor suspended the complainant for seven days. While receiving
an oral reprimand, the supervisor allegedly backed complainant into a
corner, stuck a pencil in his chest and spoke to him inappropriately.
The agency accepted the complaint for investigation. Once the
investigation was complete, the agency advised complainant that he had
the right to elect, within thirty days, a hearing before a Commission
Administrative Judge or an FAD without a hearing on the merits of
his complaint. Complainant did not respond to the agency's notice of
election and the agency issued an FAD, finding no discrimination.
ANALYSIS AND FINDINGS
The process used to determine whether an employer has discriminated
against an employee on a basis covered under Federal nondiscrimination
law is by now well-established. To succeed on a claim of employment
discrimination based on disparate treatment, the complainant must
establish the agency's discriminatory intent or motivation by either
direct or circumstantial evidence. U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 714, n.3 (1983). First, the complainant must
establish a prima facie case by proving, by a preponderance of the
evidence, that the agency took action against him which, if unexplained,
would lead to an inference of discriminatory motive or intent. Furnco
Construction Corp. v. Waters, 438 U.S. 567, 579-80 (1978); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13 (1973). Second, after the
complainant establishes a prima facie case, the burden of proof shifts to
the agency "to articulate some legitimate nondiscriminatory reason" for
its actions to rebut the inference of discrimination. Id. at 802 (emphasis
added). Third, if the agency meets its burden, the complainant bears the
ultimate burden of persuading the fact finder, again by a preponderance
of the evidence, that the reasons offered by the agency were not the true
reasons for its actions, but rather were a pretext for discrimination. The
complainant can do this by showing that a discriminatory reason motivated
the agency. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We are bound by the record established in this case by the agency and
the complainant. Federal nondiscrimination case law requires us to
apply the facts of this case to the tripartite analysis of McDonnell
Douglas. The burden is on the complainant to establish an inference of
discriminatory motive. A prima facie case can be made by demonstrating
that (1) he was a member of a protected class; (2) that he was qualified
for the job he was performing; (3) that he was meeting the normal
requirements of the position; (4) that he was discharged; and, (5)
that he was replaced by an employee outside his protected class or was
singled out for discharge while similarly situated employees not of his
protected class were retained. See Moore v. City of Charlotte, N.C., 754
F.2d 1100, 1105-1106 (4th Cir. 1985), cert. denied 472 U.S. 1021 (1985);
White v. Ed Miller & Son, Inc., 457 F. Supp. 148, 150 (D. Neb. 1978);
Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir. 1977). While
proof of all five of the criteria will establish a circumstantial prima
facie case, the absence of proof in some of the elements may be overcome
if appellant sets forth some evidence of agency actions from which, if
otherwise unexplained, an inference of discrimination can be drawn. Jatoi
v. Hurst-Eules-Bedford Hosp. Auth., 807 F.2d 1214, 1219 (5th Cir. 1987).
Complainant maintains that he felt discriminated against based on
his race, sex, age, and disability as referenced above. However,
complainant has failed to support his feeling with any evidence.
For example, complainant failed to demonstrate by comparing himself
with anyone, not in his protected class who was treated differently in
a similar situation. Complainant has not established an inference of
discrimination, by any other method, that he was discriminated against.
A prima facie case cannot be made where, as here, the complainant relies
only on his membership in a protected class, and the adverse employment
action. After reviewing the entire record, we find that the complainant
has failed to make a prima facie case of discrimination.
Assuming that complainant established a prima facie case, we find that
complainant failed to demonstrate that the agency's articulated reason was
a pretext for discrimination. The agency indicates that complainant was
issued discipline for violation of its policy prohibiting obnoxious and
offensive conduct. Complainant failed to demonstrate that this reason
is pretext for unlawful discrimination.
Accordingly, we find no evidence in the record from which to find that
the complainant was suspended on the basis of his age, race or disability.
We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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, 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:
2/15/2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 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.