0120064937
01-07-2009
Clent M. Pinkney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Clent M. Pinkney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01200649371
Agency No. 4C-440-0057-06
DECISION
On August 22, 2006, complainant filed an appeal from the agency's July
17, 2006 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 for the Commission's de novo
review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Carrier at the agency's Station B facility in Cleveland, Ohio.
On February 6, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Black), sex (male),
disability (physical), and age (48) when:
1. since 1999, he had been in a light duty status, which was incorrect
since his stroke was caused by an on-the-job harassment;
2. since 1999, he had been in light duty status, but was never given a
specific time frame for that light duty, nor was he told that the light
duty assignment was temporary;
3. on an unspecified date, following a route inspection, route 003017 was
adjusted based not on his performance, but on that of a utility carrier;
4. on December 3, 2005, he received a Letter of Warning (LOW)
dated November 30, 2005, for Failure to Perform Total Job
Responsibilities/Failure to Follow Instructions; and
5. on December 1, 2005, he was issued a letter stating his light duty
status was deemed to be permanent and was given several options in regard
to his employment.
On March 16, 2006, the agency issued a letter of Partial Acceptance /
Partial Dismissal of Formal EEO Complaint, in which it accepted claim 4
for investigation, and dismissed claims 1, 2, 3 and 5. In its Partial
Dismissal letter, the agency dismissed claims 1 and 2 for untimely
EEO Counselor contact, under 29 C.F.R. � 1614.107(a)(2), as the time
between the alleged discriminatory incident in 1999 and the date of
his EEO Counselor contact on December 5, 2005, far exceeded 45 days.
The agency also dismissed claims 1, 2, 3 and 5 for failure to state a
claim under 29 C.F.R. � 1614.107(a)(1). Claim 4 was forwarded to an
EEO Investigator for investigation into complainant's claim that the
Letter of Warning issued when he exceeded his time in the office, and
worked unauthorized overtime, was discriminatory in nature.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). When complainant did
not request either a final agency decision or a hearing within the time
frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
In its final agency decision (FAD) the agency found no discrimination.
With respect to a disparate treatment analysis of complainant's claim on
the bases of race, sex, and age, the agency found that complainant had
failed to put forth a prima facie case, because he had not shown that he
had been subjected to an adverse action, (as the LOW had been reduced to a
"discussion" pursuant to the grievance which complainant had filed through
his union), and he had not shown that similarly situated employees,
not of his protected bases, had been treated more favorably than him.
The record showed that two other employees had also received Letters of
Warning for identical infractions.
Regarding the basis of disability, the agency concluded that complainant
had not made out a prima facie case of disability discrimination.
It found that he was not an "individual with a disability" as defined by
the Rehabilitation Act as he had not proven that he was substantially
limited in a major life activity, or that the agency regarded him as
disabled.
Assuming arguendo that complainant had established his prima facie case
on the bases of race, sex, age and disability, the agency found that
it had presented legitimate, nondiscriminatory reasons for its actions,
namely, that complainant had extended his office time by 43 minutes and
did not request advance permission to do so. This violated established,
well-known procedures. The agency concluded that complainant had not
shown the agency's reasons to be pretext for discrimination.
Complainant filed the instant appeal, however, he did not submit any
argument in support of his appeal. The agency submitted a brief in
opposition to complainant's appeal of the final agency decision.
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").
Initially, we find that the agency's Partial Acceptance / Partial
Dismissal letter correctly found that complainant was untimely with his
EEO Counselor contact for claims 1 and 2, and we affirm the dismissal
of those two claims. We also affirm the dismissal of claims 1, 2,
3 and 5 for failure to state a claim.
After a thorough review of the record, as well as the argument submitted
by the agency in opposition to the appeal, and in the absence of any
brief submitted by complainant in support of his appeal, we find that
the agency's conclusion that complainant has not shown that he was
discriminated against based on his race, sex, age or disability was
correct.2 Therefore, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 7, 2009
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability.
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0120064937
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
5
0120064937