Buddy L. Spaulding, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01972764 (E.E.O.C. Jan. 15, 1999)

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.