01993970
03-30-2000
Kenneth Pittman, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth Pittman, Jr., )
Complainant, )
) Appeal No. 01993970
v. ) Agency No. 1J608102896
) Hearing No. 210-98-6538X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. on the basis of sex (male)
and in reprisal for prior EEO activity. <1> The appeal is accepted by the
Commission in accordance with the provisions of to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
On March 3, 1997 complainant filed a complaint of discrimination.
The agency accepted the complaint for investigation. The complainant
alleged discrimination when he was issued an eight- day suspension and
placed in emergency off-duty status. After a hearing on the record,
an Administrative Judge (AJ), issued a recommended decision finding
no discrimination. On March 18, 1999 the complainant received the
final agency decision (FAD) wherein the agency agreed to implement the
AJ's decision. Complainant now appeals the FAD. We affirm the FAD
as clarified. Neither party has supplemented the record by comment or
brief.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that
he was discriminated against based upon sex and/or in retaliation for
prior protected EEO activity.
BACKGROUND
During the relevant time complainant was employed as a distribution
clerk at the agency's Irving Park facility. A supervisor (RMO: female),
but not the complainant's supervisor, issued complainant an eight-day
suspension on May 24, 1996. Complainant maintains that the suspension
was based on sex and in reprisal for prior EEO activity. The AJ found
that complainant did not sustain his burden of proof.
Following a meeting with RMO on May 15, 1996, complainant was placed on
emergency off-duty status and subsequently issued an eight-day suspension.
The agency maintains that during the meeting complainant displayed
unacceptable conduct when, he stood up, leaned over RMO's desk, shouted at
RMO, threatened to file a complaint, and referred to RMO as a �...silly
a-- b--ch.� Complainant denied threatening RMO but admits telling RMO
that he would file a grievance and an EEO complaint if she prevented
him from taking care of his family and furthering his education.
Without a comparison employee or other means of establishing an
inference of discrimination, the AJ found that complainant failed
to establish a prima facie case of sex discrimination. However,
the AJ found that complainant did establish a prima facie case of
retaliation. The agency met its burden of production by articulating
a legitimate nondiscriminatory reason for complainant's suspension,
namely complainant's threatening conduct.
The AJ found that RMO was a more credible witness than the complainant,
that she was seemingly truthful, that her demeanor and testimony
was consistent and that the totality of the surrounding circumstances
supported RMO's version of the facts. The AJ found that the complainant
failed to sustain his burden of persuasion. With respect to the
complainant's retaliation claim, the AJ found that the complainant has
established a prima facie case but failed to establish that the agency's
articulated reason was a pretext for retaliation.
ANALYSIS AND FINDINGS
As the AJ correctly noted, this complaint constitutes a claim of
disparate treatment which is properly analyzed under the tripartite
analytical framework outlined in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See also, Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867 (1984) ; U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); and Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981). The Commission subjects the
factual findings in a decision by an administrative judge issued pursuant
to 64 Fed. Reg 37,657 (1999) (to be codified at 29 C.F.R. �1614.109(i))
to a substantial evidence standard of review<2>. 64 Fed. Reg 37,659
(1999) (to be codified at 29 C.F.R. �1614.405(a).
Applying this legal standard, we find no reason to disturb the factual
findings of the AJ. We find that the AJ applied the correct law
to each of the complainant's claims. The AJ properly concluded that
complainant failed to establish a prima facie case of sex discrimination.
Despite the complainant's contention that he reacted calmly, the AJ found
that RMO reasonably felt threatened by complainant's conduct. We further
determine that the AJ properly concluded that complainant established a
prima facie case of reprisal, and that the agency produced a legitimate,
nondiscriminatory reason for the eight-day suspension and the emergency
off-duty placement. While complainant maintains that he was suspended
because of his sex and in retaliation for prior protected activity,
the AJ found that the agency's legitimate and nondiscriminatory reasons
were not rebutted by complainant.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
3/30/2000 ____________________________
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.
2 Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).