01A32387
04-06-2004
Edward Arayaes v. United States Postal Service
01A32387
April 6, 2004
.
Edward Arayaes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A32387
Agency No. 1E-891-0014-01
Hearing No. 340-A2-3328X
DECISION
Complainant timely initiated an appeal from a final agency decision
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.<1>
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Las Vegas Processing &
Distribution (P&D) Center in Nevada. Complainant, who served as a union
steward and EEO representative for several years, sought EEO counseling
and subsequently filed a formal complaint on March 17, 2001, alleging
that he was discriminated against on the bases of race (Caucasian), age,
and in reprisal for prior EEO activity when he was verbally attacked by
his supervisor and, ongoing from January 18, 2001, was denied overtime.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
originally requested a hearing and it appears from complainant's
appeal statement that he had several hearing requests pending before
the Commission's Los Angeles District Office. On December 30, 2002,
an EEOC Administrative Judge denied his December 15, 2002 request to
postpone the hearing and restated that it was scheduled for January
9, 2003. In its final decision, the agency states that in response to
the Administrative Judge's decision, complainant withdrew his hearing
request, and on January 6, 2003, the Administrative Judge remanded the
case to the agency for the issuance of a final decision.
In its final decision, the agency concluded that complainant failed to
establish a prima facie case of discrimination on any of his alleged
bases. Assuming arguendo that he did establish a prima facie case of
discrimination, the agency stated that complainant was not denied overtime
and the only time he did not work overtime was when he was asked to be
excused. The agency also found that there was no evidence to support
complainant's claim that he was verbally attacked by his supervisor.
On appeal, complainant argues that the Commission should consider
the motion for summary judgment in his favor that he submitted to the
Administrative Judge and that the agency failed to address claims of
discrimination raised in complainant's other complaints.<2> Complainant
requests that all of his complaints be remanded for investigation,
redress, and the scheduling of a hearing. Complainant does not refute
the agency's statement that he withdrew his hearing request.
Upon review of the record, we conclude that complainant has failed to
prove, by a preponderance of the evidence, that the incidents alleged in
the instant complaint actually occurred, and assuming arguendo that they
did occur, that they were motivated by unlawful discriminatory animus.
Accordingly, the Commission AFFIRMS the final agency 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
April 6, 2004
__________________
Date
1 This decision is being issued concurrently with the Commission's
decision in Martin v. United States Postal Service, EEOC Appeal
No. 01A32388.
2 In the motion for summary judgment, complainant's argument concerns the
agency's decision to use Scheme Aid Machines (SAMs) at the P&D Center.
Complainant argues, inter alia, that management specifically used the
SAMs to deprive complainant of overtime work and that this decision
disparately impacted employees in complainant's protected classes.
Complainant attached the front page caption of an arbitrator's decision
that suggests management violated a union agreement when it used
non-scheme qualified �ODL� employees, assisted by SAMs, on straight time,
in order to avoid penalty overtime for scheme-qualified �ODL� employees.