01972764
01-15-1999
Buddy L. Spaulding, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Buddy L. Spaulding v. United States Postal Service
01972764
January 15, 1999
Buddy L. Spaulding, )
Appellant, )
) Appeal No. 01972764
v. ) Agency No. 4G-760-1100-96
) 4G-760-1101-96
William J. Henderson, ) 4G-760-1116-96
Postmaster General, ) 4G-760-1114-96
United States Postal Service, ) Hearing No. 310-96-5497X
(S.E./S.W. Region), ) 310-96-5498X
Agency. ) 310-96-5508X
) 310-96-5520X
DECISION
Appellant timely appeals a final agency decision (FAD) concerning his
complaint of unlawful employment discrimination on the bases of sex
(male), reprisal (prior EEO activity), age (over 40), and physical
disability (back fracture), 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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,
et seq. Appellant alleges he was discriminated against when: (1) he
was reassigned to the Main Arlington facility; (2) he was transferred
to the Ft. Worth facility; (3) he was not permitted to work overtime
(OT) from July through September, 1995, and (4) he was denied equitable
OT from October through December, 1995.<1> The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a PS-4 Mail Handler in a limited duty assignment in the Watson facility
performing a clerk's duties.<2> Appellant alleged that the above-listed
actions were initiated by agency management for discriminatory reasons.
The Arlington Postmaster (APM) indicated that while appellant was working
in the Watson facility, he received a letter from appellant requesting a
transfer to the Arlington facility because of problems he was having at
the Watson facility. APM indicated that he did not act on appellant's
request until he received a report from the agency's "Function Four
Team (FFT)," which determined that clerk hours needed to be reduced at
the Watson facility where appellant worked. Another supervisor at the
Arlington facility (AS1) indicated that based on appellant's request and
the report by the FFT, he transferred the clerks, including appellant (who
was performing clerk work as a Mail Handler) to the Arlington facility.
Prior to the above-referenced transfer, the Supervisor at the Watson
facility (WS2) indicated that appellant had hand-written his name on the
clerks and carriers OT desired list, even though he was a Mail Handler.
WS2 indicated that appellant did receive OT during the third quarter of
1995, until clerk employees complained and filed a class action grievance
alleging that appellant was taking OT work away from clerks. WS2 stated
that following the grievance, appellant was only provided OT opportunities
after all clerks were first provided the opportunity to work OT.
After being reassigned to the Arlington facility, appellant was on the
OT desired list, and received more OT during the last quarter of 1995
than other, more senior, Mail Handlers. AS1 indicated that appellant
received OT when work was available within his limitations, and if clerks
and casual employees were available to assist him. Finally, AS1 stated
that the FFT also determined that Mail Handlers were no longer needed in
the Arlington facility, and effective January 6, 1996, all Mail Handlers
were transferred to the Ft. Worth facility.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed two formal complaints on November
20, 1995, and two additional complaints on January 29, 1996. At the
conclusion of the investigations, appellant received copies of the
investigative files and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination.
The AJ first concluded that appellant was a qualified individual with
a disability under the Rehabilitation Act because his back injury and
resulting limitations substantially limited his ability to work. The AJ
then concluded that, with respect to issues (1) and (2), appellant failed
to establish a prima facie case of age, sex, or disability discrimination
because he failed to demonstrate that similarly situated employees not in
his protected classes were treated differently by not being reassigned
to the Arlington facility or subsequently being transferred to the
Ft. Worth facility. The AJ found that appellant did establish prima
facie cases of age, sex and disability discrimination with respect to
issue (3), noting that others not in his protected class were allowed
to work OT, and OT work was available to be done. Additionally, the AJ
found that appellant did establish prima facie cases of retaliation with
respect to issues (1) through (3), noting his continual utilization of
the EEO process, management's knowledge of his EEO activity, and the
proximity in time of the alleged discriminatory actions. Finally, the
AJ concluded that appellant failed to establish a prima facie case of
age, sex, reprisal or disability discrimination with respect to issue
(4), noting that appellant failed to show that he received less OT than
similarly situated individuals.
The AJ then found that agency management officials offered legitimate,
non-discriminatory reasons for their actions, namely, that appellant
was reassigned to the Arlington facility because the FFT team determined
there were too many clerks performing work at the Watson facility, and
because appellant had previously requested a reassignment to the Arlington
facility. The FFT also recommended that Mail Handlers were not needed in
the Arlington facility, and therefore were transferred to the Ft. Worth
facility. The AJ also noted that WS1 stated that appellant received
less OT during the third quarter of 1995 because the clerks had filed
a grievance, noting that assigning appellant OT violated the agency's
contractual agreement with the union. Finally, AS1 stated that appellant
received OT opportunities when work was available within his limitations,
and if clerks and casual employees were available to assist him.
The AJ concluded that, with respect to all four issues, appellant failed
to demonstrate that, more likely than not, the agency's actions were a
pretext for discrimination under any of appellant's alleged bases. The AJ
noted that with respect to both transfers, many employees were affected,
and there was no evidence presented that appellant was singled out for
disparate treatment. The AJ also noted that under the Rehabilitation Act,
it would be an undue hardship for the agency to provide OT opportunities
ahead of clerk craft employees when such an action would violate the
collective bargaining agreement between the agency and the union. The AJ
further noted that evidence in the record indicated that appellant did
receive OT opportunities prior to the grievance, and that the agency
took no action to deny available OT until after the grievance was filed.
Finally, the AJ noted that appellant did receive OT while working in
the Arlington facility during the last quarter of 1995. The agency's
FAD adopted the AJ's RD. On appeal, appellant contends that the AJ's
decision was contrary to the facts and law, and the agency requests that
we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that any of the agency's actions were in retaliation for
appellant's prior EEO activity or were motivated by discriminatory animus
toward appellant's gender, age or disability. We further note that the
rationale we found pretextual in 1991 was not evident with respect to
the OT allegedly denied in 1995, and appellant failed to demonstrate that
discriminatory animus motivated his denial of OT in 1995. We therefore
discern no basis to disturb the AJ's findings of no discrimination which
were based on a detailed assessment of the credibility of the witnesses.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Therefore, after a
careful review of the record, including appellant's contentions on appeal,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Jan 15, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that appellant has filed a series of EEO complaints of
discrimination alleging, among other things, denial of OT. In one
instance, we found that the agency did discriminate against appellant
by denying him OT during the fourth quarter of 1991 based on his
physical disability. See Spaulding v. United States Postal Service,
EEOC Appeal No. 01932868 (July 14, 1994), request for reconsideration
denied, EEOC Request No. 05940877 (April 19, 1995). We also note that
appellant contends on appeal that the discrimination commenced in 1984,
when the agency discriminatorily offered him in a lower graded position
after he was injured on the job in 1984.
2 We note that appellant originally requested a transfer to the Watson
facility, and further, that he was the only Mail Handler at the Watson
facility.