0120170499
09-07-2018
Ethan M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ethan M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170499
Agency No. 1C192001016
DECISION
On November 26, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 26, 2016, final 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.
ISSUE PRESENTED
Whether the evidence of record supports the Agency's conclusion that Complainant failed to prove that he was discriminated against based on reprisal (prior EEO activity) when he was not provided overtime.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic, PS-07 at the Agency's Philadelphia Network Distribution Center facility in Philadelphia, Pennsylvania. On July 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was denied overtime to work on "Saturday night for Sunday" (6:00 p.m. to 6:30 a.m. on February 20/21, 2016) and "Sunday night for Monday" (6:00 p.m. to 6:30 a.m. on February 21/22, 2016. These were his non-scheduled days. Complainant had filed an EEO complaint on another matter in "October 2015."
Complainant testified that Acting Supervisor, Maintenance Operations, S2 asked him and two other maintenance employees on the night of February 18/19, 2016 (Thursday night for Friday) to work overtime for the following evening because of a "hot paint job." Complainant recalled that he worked four hours of early overtime (preshift) on Friday night for Saturday (6:00 p.m. to 10:00 p.m. on February 19, 2016).
Complainant testified that he and another mechanic asked S2 for permission to work Saturday night for Sunday (February 20/21) overtime, and also Sunday night for Monday (February 21/22) overtime. According to Complainant, S2 replied that he would not be working on Saturday night for Sunday, but that he would "request by email" to see if Complainant could work on Saturday night for Sunday. Complainant declared that he assumed this email was sent by S2 to his immediate Supervisor, S1, and the Manager, Maintenance Operations, M1.
Complainant testified that he was available to work up to 12 hours of overtime on Saturday night for Sunday (February 20/21). He noted that he was also available to work up to 12 hours of overtime on Sunday night for Monday (February 21/22). He indicated that he was not offered overtime for either night. He pointed out that he was on the Overtime Desired List.
Complainant testified that on February 24, 2016, he asked M1 and S2 why he was not offered overtime work for the evenings at issue. He indicated that both management officials questioned why he was not offered overtime. According to Complainant, M1 subsequently revealed that S1 did not believe there was "enough work left to be painted," so S1 did not ask Complainant to work overtime.
Complainant testified that M1 agreed that he should have worked overtime. He stated that M1 told him, "No need for union involvement." According to Complainant, M1 gave him an 8-hour overtime make-up date to be determined later. Complainant acknowledged that he received the make-up day on Saturday night, April 16, 2016.
S1 maintained that he was not involved in the decision to deny Complainant Saturday night for Sunday overtime (February 20/21, 2016). He pointed out that he (S1) was not scheduled to work on Tuesday night for Wednesday (February 16/17) or Wednesday night for Thursday (February 17/18), and he was on Annual Leave on Saturday night for Sunday (February 19/20). He asserted
that Complainant never asked him for overtime. He declared that the paint project at issue was taken care of by S2 on Thursday night for Friday (February 18/19). He recalled arriving at the office on Friday night for Saturday (February 19/20) and seeing an email that MM7s were brought in to paint. He asserted that he was under the impression that all overtime arrangements had been already made. He pointed out that it was not customary for a supervisor to schedule overtime for a day when the supervisor would not be at work. S2 would have been responsible Saturday night for Sunday (February 20/21). He surmised that Complainant did not receive overtime due to a "misunderstanding at best."
S2 stated that he "did not recall having any conversation with Complainant for overtime for Saturday night for Sunday, nor did he recall contacting S1 about the scheduling for February 20/21, 2016. S2 stated that to his knowledge, no overtime work was needed on February 20/21, 2016. S2 stated that no other employees in the same position worked overtime on February 20/21, 2016.
M1 stated that S1 did not schedule any employee to work overtime for Saturday night for Sunday (February 20/21). Some employees were brought to work pre-shift on another project, and that he suspects that Complainant learned of that and thought that he should have been asked to work on Saturday night for Sunday (February 20/21). He stated that he did not believe that the supervisors did anything wrong, but he offered Complainant a make-up day to keep him satisfied and to "move on from this."
Despite the offer, Complainant "argued" to M1 that S1's conduct must have been motivated by retaliation because a co-worker told Complainant "that S1 did not like him." Complainant also argued that two other employees were asked to come in to work four hours of pre-shift overtime. Complainant did not provide any further evidence that S1 disliked him or was involved with the requests of the two pre-shift employees. Complainant further argued that S1 "should have known that there was paint work to complete."
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 Equal Employment Opportunity Commission Administrative Judge. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted additional information about employees being called in for overtime work. He asserts that "painting took place on Sunday, February 20/21, 2016. Complainant states that he should have been called in for that painting. He identifies another Supervisor as the one supervising the painting on that date, and that he should have called Complainant. Complainant contends that S1 was responsible for his not being called, but he provided no evidence.
The Agency did not respond to Complainant's assertions.
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. (Aug. 5, 2015) (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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal, we find that the Agency presented legitimate, non-discriminatory reasons for its actions in not scheduling Complainant for overtime for the days in question. Management did not assign any employee to overtime for February 20/21, 2016. The burden shifts to Complainant to rebut those reasons and demonstrate that they are pretext for discrimination. Complainant avers, without presenting evidence, that he "heard" that S1 did not like him.3 Complainant also avers on appeal, without presenting evidence, that another employee was brought in by a different Supervisor for a one-time instance of painting on February 20/21, 2016.4
Complainant must prove by a preponderance of the evidence that he was discriminated against based on his prior EEO activity. Mere uncorroborated assertions and conclusory allegations are insufficient. S1 and M1 seemed to acknowledge that there was a lack of communication between S1 and S2 that perhaps resulted in a misunderstanding. To the extent that Complainant felt that he was somehow denied an opportunity for overtime due to this misunderstanding, M1 subsequently provided Complainant with 8 hours of overtime. Complainant simply failed to demonstrate by a preponderance of evidence of record that the reasons asserted by the Agency was pretext for discrimination based on Complainant's prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we Affirm the Agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_9/7/18_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Commission concurs in the Agency's dismissal of the three (3) additional allegations asserted by Complainant because they failed to state a claim.
3 Even if it is true that S1 does not like Complainant, there is no indication that it is due to Complainant's EEO activity.
4 As noted above, M1 indicated that some employees were brought in pre-shift on another project.
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