01995571
02-15-2002
Daniel J. Barnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel J. Barnett v. United States Postal Service
01995571
February 15, 2002
.
Daniel J. Barnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995571
Agency No. 4C-170-0055-97
DECISION
On July 2, 1999, Daniel J. Barnett (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision (FAD) of the United States Postal Service
(agency), 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. This appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The issue presented herein is whether complainant was discriminated
against on the basis of sex when, on or about May 26, 1997, he alleged he
was treated differently than female part-time flexible (PTFs) employees
with regard to the assignment of work hours and scheduling.
During the relevant time, complainant, the senior PTF, was employed as
a PTF Distribution Window Clerk, PS-5, with the agency's Greencastle,
Pennsylvania facility (the facility). Complainant asserted that
management provided the female clerk craft employees more hours or more
preferential schedules<1> throughout the course of a week. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on December 2, 1995. At the
conclusion of the investigation complainant was provided a copy of the
investigative file and informed of his right to request a hearing before
an EEOC Administrative Judge (AJ) or, alternatively, to receive a final
decision by the agency. Complainant first requested a hearing before an
AJ. However, the AJ remanded complainant's file to the agency on June 3,
1999 for a final agency decision in accordance with complainant's request.
In its final decision, dated June 18, 1999, the agency found that
complainant failed to establish a prima facie case of sex discrimination.
The agency then assumed arguendo that complainant did establish a
prima facie case of sex discrimination and articulated a legitimate
non-discriminatory reason for its action, namely that complainant
received more work hours than any female PTF (comparators) in the office.
In addition, the agency noted that a PTF's seniority has no affect on
the assignment of work hours under the union agreement. The agency
then determined that complainant failed to present evidence to prove
that the agency's articulated reasons were pretext for discrimination.
On appeal, complainant contends, among other things, that: (1) on a weekly
basis beginning on or about May 27, 1997, he was given less total work
hours or was assigned less preferred schedules known as split shifts;<2>
and (2) the agency's data showing that he was working more hours than
the comparators relates to periods prior to May 27, 1997. The agency
requests that we affirm its final agency decision.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of sex discrimination. Therefore, the
burden shifts to the agency to articulate legitimate, nondiscriminatory
reasons for its actions. The agency stated that complainant received
more work hours than any female PTF in the office. In addition, the
agency noted that, under the union agreement, seniority has no affect
on the number of work hours assigned to PTFs.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to complainant to demonstrate that
the agency's articulated reasons are unworthy of belief. On appeal,
complainant contends that the agency's data showing that he was working
more hours than the comparators relates to periods prior to May 27, 1997.
Contrary to complainant's contention, a careful review of the record
reveals that complainant worked more hours than his three comparators from
pay period 13 through pay period 15, the pay periods encompassing late
May 1997 through early July 1997. Complainant further contends that,
on a weekly basis beginning on or about May 27, 1997, he was assigned
less preferred schedules known as split schedules. We note, however,
that it was only during discovery that complainant indicated that split
schedules are the less preferred schedules. In his response to the
agency's interrogatories, complainant provided an account of days during
which he was required to work split schedules, but his comparators were
not. While his account did identify when complainant worked the split
schedules, it remains unclear how often the comparators were assigned
the split schedules. We note that complainant had the opportunity to
develop the record at a hearing, but instead, he withdrew his request.
In sum, complainant fails to present evidence that any of the agency's
actions were more likely than not motivated by discriminatory animus
toward his sex. The record supports the agency's finding that complainant
failed to prove that he was treated less favorably than female PTFs with
regard to the assignment of work hours and scheduling.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
February 15, 2002
__________________
Date
1 During discovery, complainant explained that he considered �split�
schedules to be less preferred schedules. In split schedules, the
employee's schedule requires him to return to duty after a number of
hours of being off duty.
2 Complainant notes that, despite his continued requests, the agency
refuses to provide copies of the back of the comparators' time cards to
determine the number of split shifts worked by each employee.