0120090195
06-29-2010
Donald L. Dennis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Donald L. Dennis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090195
Agency No. 4H-300-0096-08
DECISION
Complainant filed an appeal from the Agency's September 17, 2008, final
decision (Ag 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. 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 Supervisor Customer Services at the Agency's Old National Station
facility in Atlanta, Georgia. On April 11, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
basis of sex (male) when:
From November 20, 2007 through January 2008, Complainant was not allowed
to work on his non-scheduled days.1
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). When
Complainant did not request 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 decision, the Agency found that Complainant did not establish that
he was treated differently than other employees, not in his protected
group with respect to opportunities to work on his nonscheduled days, and
that he was not subjected to harassment because of his sex. Ag Decision
at 9. Specifically, the agency noted that Complainant worked on his
nonscheduled on various dates in November 2007, December 2007 and in
January 2008. Id. The Agency noted that Complainant used annual leave
during these months, at which time E1, a female Acting Supervisor, was
scheduled for work on her non-scheduled days as needed. E1's total
hours for non-scheduled days were greater than Complainant's hours
during the same period. However, after deducting for Complainant's
leave, the difference between E1's hours and Complainant's hours
was only 21.46 hours. Counselor's Report, at 17. Additionally, the
Agency considered that Complainant had called in to be excused from
work on several occasions when he had been scheduled for work on his
non-scheduled days. Id. at 9. Accordingly, the agency found that
Complainant was not subjected to discrimination based on his sex.
With respect to Complainant's claim of harassment, the Agency found that
Complainant failed to show that he was subjected to harassment because
of his sex when he was not allowed to work on his non-scheduled days.
The Agency noted that the evidence showed that hours for overtime were
diminished because of workflow, and that statements from witnesses
indicated that Complainant had declined to work on at least three
occasions when he could have worked on his non-scheduled days.
Ag Decision at 8. The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the statements of E1 and other agency
witnesses are not true and that he did not call in to miss scheduled work.
Complainant claims that if he had called in, a leave slip would have been
generated for him to complete when he returned to work. Complainant's
statement on appeal.
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 Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
In the instant case, we find the record supports the agency's Final
Decision. We note that S2, Supervisor, EAS 22, stated that Complainant
had called to cancel when he had been scheduled to work on his
non-scheduled days during the time in question, and that Complainant's
total hours during that time did not differ significantly from those of
S1, after taking into consideration Complainant's leave and canceled work.
S2's Affidavit B, 4.
We find that Complainant has not presented evidence to show that more
likely than not he was subjected to discrimination based on his sex as
alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency's Final Decision finding no discrimination.
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 tends 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.
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
June 29, 2010
__________________
Date
1 Complainant alleged that he was discriminated against both on a theory
of disparate treatment and harassment.
??
??
??
??
2
0120090195
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090195