Clement J. Haberman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 18, 2001
05A11090 (E.E.O.C. Dec. 18, 2001)

05A11090

12-18-2001

Clement J. Haberman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Clement J. Haberman v. United States Postal Service

05A11090

December 18, 2001

.

Clement J. Haberman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Request No. 05A11090

Appeal No. 01984805

Agency No. 4J640114996

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Clement

J. Haberman v. United States Postal Service, EEOC Appeal No. 01984805

(August 2, 2001). EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

BACKGROUND

Complainant timely initiated an appeal from a final agency decision

(FAD), concerning his complaint of unlawful 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, in his complaint,

that he was discriminated against on the bases of race (White), sex

(male), age (over 40), and reprisal (prior protected activity), when:

(1) his starting time was changed from 5:00 a.m. to 7:00 a.m.; and (2)

he was denied Postal Source Data System (PSDS) training.

The record reveals that during the relevant time, complainant was

employed as a Time and Attendance Clerk, PS-05, at the agency's Kansas

City Main Post Office, Kansas City, Missouri. Believing he was a victim

of discrimination, complainant subsequently filed a formal complaint on

August 29, 1996. Complainant requested that the agency issue a FAD.

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of race, sex, age and/or retaliation discrimination,

because complainant failed to identify any comparison employees who

were treated more favorably. The Responsible Management Official

(RMO) also stated that due to the installation of a new system called

Electronic Timekeeping Clock - Local Area Network (ETC-LAN), it was no

longer necessary for complainant to begin work at 5:00 a.m. In addition,

the RMO indicated that PSDS was an outdated system, and that the agency

had been in the process of changing to the ETC-LAN and another Time

and Attendance Collection System (TACS). Thus, according to the RMO,

training for PSDS would not be offered to anyone unless they received

a formal bid into the section. The RMO additionally indicated that

complainant never applied for a permanent position in PSDS.

On appeal, complainant contended that he established a prima facie case

of retaliation and age discrimination. Complainant also challenged the

agency to present evidence supporting its claims and reiterated various

arguments in support of his discrimination allegations.

The Commission found that complainant failed to present evidence that,

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. In addition, the Commission found

that complainant failed to sufficiently show that the agency's actions

were unreasonable in terms of business judgment, and thus, without more,

complainant's argument that the agency's articulated reasons for its

actions were a pretext for discrimination is unproven.

On reconsideration, the complainant argues that people were trained

in PSDS without a formal bid into the PSDS section, and that people

outside the ETC section received ETC training. Complainant further

argues that the agency's actions have been unreasonable in terms of

business judgment. Complainant also argues, as evidence of pretext,

that he has been daily harassed.

ANALYSIS AND FINDINGS

Although complainant argues that a start time of 5:00 a.m. would be

beneficial to the agency, complainant does not explain how changing his

starting time from 5:00 a.m. to 7:00 a.m. was unlawful. Thus, although

complainant attempts to suggest that there was work he could have done

at 5:00 a.m., complainant has not shown any evidence of how management

unlawfully abused its discretion in directing that complainant's starting

time begin at 7:00 a.m., e.g., a valid comparator who had a start time

at 5:00 a.m.

Although complainant, a Time and Attendance Clerk, argues that he was

unlawfully denied PSDS training, there is no indication any other Time

and Attendance Clerk, who was outside the PSDS section, received PSDS

training, as requested by complainant. Therefore, complainant's argument

that a Data Supply Clerk, a Mail Processor, and others received PSDS

training is not relevant. Complainant also acknowledges that he received

some PSDS training. Complainant's focus is that he should have received

more PSDS training. Thus, complainant's argument that other employees,

outside the PSDS section, received PSDS training is not sufficient without

also knowing the scope of the training. Complainant also argues that

many people received ETC-LAN training without a formal bid into the ETC

section. The attempt to analogize PSDS training with ETC-LAN training

is not a valid comparison, because they are different systems and the

agency's needs could vary with respect to each system, even given that

both systems had been in the process of being phased out by the agency.

Indeed, complainant acknowledges that after PSDS was discontinued,

ETC-LAN continued to operate.

Complainant also suggested, in an effort to show pretext, that he has

been the subject of continued harassment. The evidence to support the

allegation has not been proffered. Without more, the Commission finds

that the record does not support a finding of pretext.

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01984805 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

December 18, 2001

Date