Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Region), Agency.

Equal Employment Opportunity Commission

Aug 9, 2013

0120113901 (E.E.O.C. Aug. 9, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Region),
Agency.

Appeal No. 0120113901

Hearing No. 510-2010-00202X

Agency No. 4H-330-0336-09

DECISION

On August 15, 2011, Complainant filed an appeal from the Agency’s July 20, 2011, final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Snapper Creek Branch Station in Miami, Florida. On November 27, 2009,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race, national origin (American), sex (male), religion (Catholic), color
(black), and age (52) when from August 15, 2009 – September 29, 2009, he was bypassed for
overtime opportunities. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
After both parties submitted motions for summary judgment, the AJ assigned to the case
granted summary judgment in the Agency’s favor on June 23, 2011.

The AJ found that no discrimination occurred. The AJ noted that three distinct lists reflect an
employee’s desire to work overtime. A twelve-hour list indicates that a carrier is willing to
work twelve hours per day. A ten-hour list reflects a carrier’s desire to work ten hours per
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day. A work assignment list signifies that the carrier is limited to overtime work available
solely on the employee’s route. Managers must utilize those carriers on the twelve and ten
hour lists respectively before choosing those on the work assignment list. The AJ observed
that the collective bargaining agreement provides that signing up for work assignment overtime
does not create an entitlement or obligation to work overtime on a non-scheduled day.

Complainant signed up for overtime on the work assignment list. During the relevant time
period, Complainant received 23.52 hours of overtime. The AJ noted that Complainant was
on leave from August 31 – September 18, 2009. Complainant also used 1.32 hours of leave on
August 26, 2009, and 2.6 hours of leave on August 27, 2009.

The AJ found that Complainant failed to reference a situation where he was available, not
chosen and the Agency had exhausted all efforts to utilize employees on the ten and twelve
hour lists. According to the AJ, Complainant maintained that other carriers had greater
opportunities to work overtime but he appeared to compare himself to carriers who were not
on the work assignment list. The AJ observed that Complainant contended that he should have
been called in to work overtime on his scheduled day off. The AJ rejected this argument based
on the collective bargaining agreement stating that overtime work on an employee’s scheduled
day off is not guaranteed or advisable. Complainant also claimed that he should have been
offered overtime on another route. The AJ denied this contention noting that the work
assignment list limits overtime opportunities to employees’ routes. With respect to
Complainant’s claim that he should have been afforded more overtime opportunities based on
seniority, the AJ noted that the collective bargaining agreement states that seniority is not to be
considered in order to ensure an equitable distribution of overtime opportunities. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.

We shall assume arguendo that Complainant established a prima facie case of discrimination on
the alleged bases. The Agency cited Complainant’s time away from work during the time
period at issue and his placement on the work assignment list as reasons why he did not receive
more overtime opportunities. We find that these are legitimate, nondiscriminatory reasons for
the Agency’s overtime decisions. Complainant attempts to establish pretext by referencing
coworkers on the work assignment list or the no overtime list who received overtime
opportunities on their scheduled day off. The record reflects that there were three Caucasian
females in Complainant’s age group on the work assignment list and that from August 15,
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2009 – October 2, 2009, the overtime they received were 61.56, 51.46 and 3.63 hours
respectively. The record does not indicate their religion, color and national origin. There was
an African-American male and a Caucasian female in Complainant’s age group who were not
on an overtime list and they received 23.49 and 25.03 hours of overtime respectively. The
record does not specify their religion or national origin.

Upon review of these comparisons, we discern insufficient evidence of discrimination toward
Complainant in the distribution of overtime opportunities. Complainant received 23.52 hours
of overtime. In light of the fact that Complainant was on leave for over nineteen days during
the relative timeframe, we find that the amount of overtime received by Complainant was
reasonable. Complainant has not demonstrated that there were instances where he was
available to be chosen for overtime after the Agency exhausted all efforts to utilize the
employees on the ten and twelve hour lists. We find that Complainant failed to establish that
the Agency’s explanation for its distribution of overtime to Complainant was pretext intended
to mask discriminatory intent on any of the alleged bases.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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.
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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

(S0610)
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

(Z0610)
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

August 9, 2013
Date