0120090860
05-21-2009
Eddie L. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eddie L. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090860
Agency No. 1H-333-0007-08
Hearing No. 510-2009-00018X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 21, 2008 final decision concerning
his equal employment opportunity (EEO) complaint claiming 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.
On June 3, 2008, complainant, a Mail Processing Clerk at the South Florida
Processing and Distribution Center filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the bases of race (black) and sex (male) when on February 23 - 25,
2008, he was denied overtime.
Following an investigation by the agency, complainant was provided with
a copy of the report of investigation and notice of the right to request
a hearing before an EEOC Administrative Judge (AJ) or a final decision
(FAD) by the agency. Complainant initially requested a hearing before
an AJ. However, complainant then withdrew his hearing request in favor
of a FAD.
On November 21, 2008, the agency issued the instant FAD. Therein,
the agency found no discrimination.
The record reflects that complainant had asserted that an agency Acting
Manager, Distribution Operations (MDO) violated a union contract regarding
overtime, when complainant was denied overtime on the dates at issue.
Moreover, complainant stated that item #14 of the Local Memorandum
of Understanding between U.S. Postal Service and Miami Area Local APWU
[American Postal Workers Union] was not followed when he was denied the
overtime. The record reflects that complainant filed a union grievance
alleging a contract violation regarding overtime.
The MDO stated that with regard to February 23, 2008, complainant
was treated the same as other employees on the Overtime Desired List
(ODL), when he worked two (2) hours of overtime along with two other
employees. Regarding February 24 and February 25, 2008, complainant
was non-scheduled, and the agency had determined that there was no
need to bring complainant in on his days off because other employees
could work the mail in Operation 030. The MDO stated that there were no
clerks treated more favorably than complainant regarding working their
non-scheduled days February 24 and February 25, 2008.
The record shows that complainant and two other employees were on the ODL
for Quarter 2 FY 2008 and volunteered to work overtime up to twelve hours
per day, as well as on their sixth day. All employees had a "begin tour"
time of 0700 with Sunday/Monday as their non-scheduled days. The Time
and Attendance Control System (TACS) report revealed that that during
Quarters 1 and 2, FY 2008, complainant worked 95.97 hours overtime,
while one worker worked 78.21 hours overtime and another worker worked
104.09 hours of overtime.
A claim of disparate treatment is examined under the three part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411.U.S. 792 (1973). For complainant to prevail, he or she 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 consideration was a factor in the adverse employment
action. See McDonnell Douglass, 411 U.S .at 802; Furnco Construction
Corp. v. Waters. 438 U.S.567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Department of Community Affairs v. Burdine, 450
U.S.567 (1978). Once the agency met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See 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
action was motivated by discrimination. See U.S. Postal Service Board
of Governor v. Aikens, 460 U.S.711, 731-714 (1983).
The record supports a finding that the agency articulated legitimate
non-discriminatory reasons for its actions relating to two of the three
days at issue when complainant did not work overtime (February 24 and
February 25, 2008); and that complainant indeed worked overtime hours
on the third day at issue (February 23, 2008). There is no evidence
of record reflecting that a similarly situated employee, outside
complainant's protected groups, was treated more favorably.
The Commission notes that on appeal, complainant's arguments appear
focused on the agency's purported violation of the above referenced
labor-management agreement and a Memorandum of Understanding. We note,
for example, that complainant expressly asserts that item 14 of the
Memorandum of Understanding s states that overtime shall be by section,
tour, overtime desired list. The Commission, however, lacks authority to
decide claims related to union activities that are not linked to claims
of discrimination.
In summary, the Commission determines that the agency's finding of no
discrimination is proper, and we AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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
May 21, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090860