0120080657
09-28-2009
Amit I. Vora, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Amit I. Vora,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120080657
Hearing No. 510-2007-00257X
Agency No. 4H-327-0007-07
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
November 6, 2007 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected to
discrimination based on race, age, and disability.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Part Time Flexible (PTF) Sales, Services, and Distribution
Associate at the agency's Eastside Post Office in Altamonte Springs,
Florida. Complainant filed a formal complaint dated December 29, 2006,
alleging that he was discriminated against on the bases of race (Indian),
disability (speaking physical impairment), and age (41 years old at the
time of the alleged incidents) when:
(1) Since June to October 2006, his work hours were reduced; and
(2) On November 15, 2006, he was not able to access the computer to
perform his job duties.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The agency's decision concluded that complainant failed to prove that he
was subjected to discrimination as alleged. Specifically, the agency's
decision found that complainant failed to establish a prima facie case
of discrimination and that he failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext
for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. He argues that he was subjected to discrimination
when he was denied work hours while other PTF employees outside his
protected classes were assigned more work hours. He also argues that he
was not allowed computer access to do his job until November 15, 2006.
The agency did not provide a statement in response to the appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination based on race, age, and disability,2 we find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
With respect to claim (1), the Manager Customer Services (MCS) submitted
an affidavit into the record stating that PTF employees are not guaranteed
any particular number of hours, noting that "[complainant] could literally
be unscheduled for weeks at a time if his services were not needed."
He stated that, if complainant was scheduled to work but was sent home,
he would be guaranteed two hours of pay, and "[t]here is no other
stipulation in the pay structure of the [agency] that guarantees a PTF
any number of hours on any given day." The MCS further stated that a
new PTF Sales, Services, and Distribution Associate was hired during
the relevant time period, and this would have restricted complainant's
hours at the Eastside station. The Supervisor Customer Services (SCS)
stated in his affidavit that he scheduled what he felt "was best for the
operation at that time." The SCS stated that the only similarly situated
PTF identified by complainant was scheduled for more hours than he was
because "she got the work done more timely than [complainant]."
Regarding claim (2), the MCS denied that complainant was not given
computer access, noting that he would have been given access if his job
tasks required use of the computer. The SCS stated that he never denied
complainant computer access. He also stated that if complainant needed
computer access, he would have been provided with the necessary access.
Complainant now bears the burden of proving by a preponderance of the
evidence that the agency's articulated reasons for its actions were a
pretext for discrimination. Upon review, we concur with the agency's
determination that complainant failed to establish pretext. Moreover,
the record is devoid of any evidence that the agency's actions were
motivated by discriminatory animus. Complainant argued in his affidavit
that management officials assigned five comparators more work hours
than he was assigned during the relevant time period. However, four
of the comparators were not similarly situated employees (three were
assigned to a different facility than complainant, and one was a full
time employee). As noted above, the SCS stated that the fifth comparator
was assigned more work since she completed work faster than complainant.
With respect to complainant's claim that he was denied computer access,
we find no evidence in the record beyond complainant's mere assertions
that he was denied computer access or that the work he was assigned
required him to have regular computer access.
Although complainant challenges the credibility of statements submitted
by management officials in the record indicating that he was not
discriminatorily denied work hours or computer access, complainant
withdrew his request for a hearing, and the Commission is limited to a
review of the record evidence. As a neutral party, we are not persuaded,
based on the record of investigation, that complainant has shown that
the agency's articulated reasons for its actions were a pretext for
unlawful discrimination.
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.
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
_________09/28/09_________
Date
1 Complainant alleged one additional claim that the agency dismissed
in its "Partial Acceptance/Partial Dismissal of Formal Complaint" on
January 22, 2007. Complainant does not contest the dismissal on appeal.
Therefore, the Commission will not address the dismissed claim. See EEOC
Management Directive 110, Chapter 9, � IV.A. (November 9, 1999).
2 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120080657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080657