0120072102
07-10-2007
Andre I. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andre I. Russell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072102
Agency No. 4H300029005
Hearing No. 410200600082X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 21, 2007 final order 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. Complainant
alleged that the agency discriminated against him on the bases of race
(African-American) and sex (male) when the Postmaster delayed his hire
as a Rural Carrier Associate (RCA).
The record reveals that complainant began working for the agency in
2004 as a non-career Temporary Relief Carrier (TRC) at the Kennesaw,
Georgia Post Office. TRC's are limited term employees and are hired
for terms not to exceed 359 calendar days. It is also required that
TRC's take a break in service of at least six days between appointments.
On November 30, 2004, complainant took a test to qualify for hire as a
non-career RCA. He received notice on December 22, 2004, that he had a
passing test score of 74.60 and was eligible for hire as an RCA at the
Kennesaw Post Office.
RCA's are hired from a Hiring Work Sheet issued by the agency's District
Human Resources Office. When management determines that there is a
need for additional employees, it requests the Hiring Worksheet for
the installation. Interviews are conducted and selections are made
according to paperwork and interviews.
As a result of his TRC status, complainant was required to take a six
day break in late January 2005. He was told by the Postmaster that
he was being scheduled for the break due to his conversion to a RCA.
When complainant returned from his break and was not converted to
a RCA, he spoke to the Postmaster, who informed complainant that
he had been mistaken in their prior conversation. Complainant was
offered a position as a RCA in May. As such, he was required to take a
mandatory break on May 7, 2005, before he could be converted to a RCA.
Complainant was hired as a RCA the day after his May break on May
14, 2005. Complainant maintains that several White employees were
treated more favorably with respect to their hire dates and filed a
formal complaint regarding this issue. Following an investigation,
complainant requested a hearing before an Administrative Judge (AJ).
The AJ issued a summary judgment decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie
case of race and sex discrimination because he failed to show that
similarly situated employees not of his protected groups were treated
more favorably. The AJ found that the comparators named by complainant
were not similarly situated as one of the comparators did not work at the
same office as complainant, two comparators were hired from a November 1,
2004, Hiring Work Sheet, which complainant could not have been hired from
since he had not taken the test at that time, and the last comparator
was hired at the same time that he was.
Nevertheless, the AJ found that even if one assumed that complainant
established a prima facie case of race and sex discrimination, the
agency articulated a legitimate nondiscriminatory reason for its action.
Specifically, the agency maintained that complainant could not have been
converted to a RCA earlier than May 14, 2005, because it was not until
March 28, 2005, that his name appeared on the Kennesaw Hiring Worksheet
from which he could be converted from a TRC to a RCA under the agency's
hiring procedures. The agency also maintained that since complainant
and a White male comparator took the examination at the same time and
each were appointed to a RCA position on the same date, complainant
could not argue that the comparator was converted to a RCA before him,
or that the time period between the comparator's appointment from a
TRC to a RCA was shorter than his due to the consideration of race.
The agency also indicated that they were treated exactly the same and
in fact since complainant's examination score was higher he was given
seniority over the comparator. Additionally, the agency indicated that
the other comparators were each on Hiring Worksheets that were issued
before complainant even took the qualifying examination. The AJ found
that complainant failed to show that the agency's reasons were pretext
for discrimination.
On appeal, complainant contends that one of the comparators was
transferred from another facility to the Kennesaw office. He maintains
that the Postmaster never mentioned the procedures used for transferring
employees from other facilities when there were available workers at
the Kennesaw facility.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
First we find the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred. Secondly, we find that
even if complainant established a prima facie case of discrimination we
agree that the agency articulated a legitimate nondiscriminatory reason
for its action, namely, that complainant was hired at the earliest
opportunity possible. There is no evidence in the record that race or
sex were considered in the timing of when complainant was converted to
a RCA. The record clearly shows that complainant's name did not appear
on the Hiring Worksheet until March 24, 2005 and the earliest he could
have been hired was May 14, 2005. The record also does not show that
complainant was required to take more than the required service break.
Additionally, the record does not show that the agency was prohibited from
choosing employees from other facilities. In fact, before complainant
was hired as a RCA at the Kennesaw facility, he considered transferring
to another facility that had placed his name on the hiring worksheet.
Accordingly, we find that complainant has failed to show and the evidence
does not support that race and sex were considered regarding complainant's
conversion to a RCA.
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
____7-10-07______________
Date
2
0120072102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4 0120072102