01992960
02-08-2002
William G. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
William G. Smith v. United States Postal Service
01992960
February 8, 2002
.
William G. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01992960
Agency No. 4D-400-0055-97
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of sex (male)
and age (50) when he received a Notice of 7-Day Suspension for failure
to Follow Instructions, dated May 8, 1997, which was reduced to a 7-Day
working suspension through a union grievance settlement.<1>
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a City Carrier, PS-05, at the Owensboro Post Office,
Kentucky. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
August 7, 1997. 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 has not met the burden
of establishing a prima facie case of sex and/or age discrimination based
on disparate treatment. Specifically, the agency noted complainant's
sweeping but non-specific allegation that many carriers, both male
and female, take long breaks, eat off their routes, go home while
they are supposed to be working and use excessive overtime, yet were
not disciplined as he was. However, the agency noted that complainant
failed to cite/identify any of these comparison carriers. The agency
further found that complainant failed to allege that any of the unnamed
comparison carriers were not in his protected age group.
Finally, the agency concluded that management articulated a legitimate,
nondiscriminatory reason for its actions. Namely, that complainant was
issued a Letter of Warning (LOW) for Failure to Follow Instructions when
he expanded his street time in order to get unauthorized and unnecessary
overtime. The agency alleged that complainant was issued a LOW after
numerous discussion with management about complainant's performance and
his deficiencies in failing to follow instructions.
On appeal, complainant submitted evidence that he was issued another LOW
on February 8, 1999, for a series of events that occurred in January 1999.
Also complainant submitted the testimony of various witness, regarding
the LOW in February 1999.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); 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). A complainant must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; 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
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that the complainant established a prima facie case
of discrimination based on his sex and age, the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for
its actions. The record reveals that complainant's suspension was due
to his failure to follow instructions. The record also reveals that
complainant was given his first letter of warning for failure to follow
instructions in November 1996, due to his behavior. The record shows that
complainant did not take his break at his authorized spot for over a year,
continued to use 2-3 hours of overtime, and took numerous breaks. When
management performed spot checks complainant was always taking a break.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant failed to show 1) that he took his break at his
authorized spot; 2) that he was not frequently taking breaks; and 3) that
he did not receive a prior warning for his behavior. The record reveals
that complainant stated that �he could take his break where he wanted to.�
Finally, we find that complainant's new allegation raised on appeal
cannot be addressed in the present decision. Complainant is advised
that if he wishes to pursue, through the EEO process, the additional
claims he raised for the first time on appeal, he shall initiate
contact with an EEO Counselor within 15 days after he receives this
decision. The Commission advises the agency that if complainant seeks
EEO counseling regarding the new claims within the above 15-day period,
the date complainant filed the appeal statement in which he raised these
claims with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, 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
February 8, 2002
__________________
Date
1This allegation was one of 20 allegations included in complainant's
formal EEO complaint. The other 19 allegations were dismissed in the
Partial Acceptance/Partial Dismissal on August 7, 1998.