01a55804
03-07-2006
Eugene Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene Moore v. United States Postal Service
01A55804
March 7, 2006
.
Eugene Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55804
Agency No. 1H-351-0022-04
Hearing No. 130-2005-00079X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as an Electronic
Technician at the agency's Processing and Distribution Center in
Birmingham, Alabama. On February 19, 2004, complainant filed a formal
complaint. Therein, complainant claimed that he was discriminated
against on the basis of race (African-American) when:
on November 22, 2003, the schedule listing him to work overtime was not
posted, resulting in a loss of overtime and his being charged with an
Absence Without Official Leave (AWOL) due to his failure to work the
scheduled overtime.
On an unspecified date, the agency issued a final decision. Therein,
the agency dismissed the complaint on the grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). On appeal, the
Commission reversed the agency's dismissal of the complaint, and remanded
the complaint to the agency for further processing. Moore v. United
States Postal Service, EEOC Appeal No. 01A43446 (August 5, 2004).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on August 8,
2005, finding no discrimination.
In his decision, the AJ found that complainant failed to establish a
prima facie case of race discrimination. The AJ further found that even
assuming arguendo complainant established a prima facie case of race
discrimination, the agency articulated legitimate, non-discriminatory
reasons for its actions. The AJ found that complainant failed to show
that the agency's articulated reasons were a pretext to mask unlawful
discrimination.
On August 11, 2005, the agency issued a final action wherein it
implemented the AJ's decision finding no discrimination.
The record reflects that the Supervisor Maintenance Operations (SMO)
stated that he was the acting supervisor during the one-week absence
of complainant's Supervisor, from November 15 to November 22, 2003.
SMO further stated that during the Supervisor's absence, it was his
responsibility to prepare and post the Thanksgiving week holiday
schedule dated November 18, 2003. SMO stated that agency policy
requires the schedule for a holiday week to be posted "by Tuesday of
the week prior to the holiday of the week that the holiday falls in."
SMO stated that "we schedule holiday week work based on who volunteered."
SMO stated that because complainant volunteered to work his holiday and
non-scheduled days during the Thanksgiving holiday week, he was scheduled
to work overtime on November 22, 2003. SMO stated that on November 18,
2003 "I personally post[ed] the schedule in a locked cabinet, which was
the official posting area for all notifications of holiday schedules and
overtime-desired list." SMO stated that he only posted one posting in the
official posting area. SMO acknowledged that complainant's Supervisor
had a practice of posting two postings: one in the official posting
area and one on the bulletin board located in the Supervisor's office.
SMO stated that during the relevant time, complainant did not ask him
whether he was scheduled to work overtime on November 22, 2003. Further,
SMO stated that he did not inform complainant that he was expected to
work overtime on November 22, 2003.
SMO stated that on November 22, 2003, the day that complainant did not
report to work on his scheduled overtime day, SMO waited "for a while to
see if I heard from him, and it was toward the end of the night before
I took any action at all." SMO stated that because he did not receive
a telephone call from complainant, he charged complainant with AWOL in
the time accounting system. SMO stated that he also sent a message
to complainant's Supervisor notifying him that complainant failed
to report to work on his scheduled overtime day, and "left it at his
discretion as to whether the AWOL or any further action would be taken."
SMO stated that he spoke with the Supervisor when he returned to work,
and they came to a conclusion that "it probably was mis-communication
or misunderstanding." SMO stated that he and the Supervisor felt that
complainant knew that he was scheduled to work on November 22, 2003 but
"we felt like [giving] him the benefit of doubt" by rescinding an AWOL
charge. SMO stated that complainant was not charged with any infraction
as a result of this incident. Furthermore, SMO stated that he did not
discriminate against complainant based on his race.
The record reflects that complainant's Supervisor stated that from
November 15 to November 22, 2003, he was out of town for training, and
that he assigned SMO to be the acting supervisor during his absence.
The Supervisor further stated that when he returned to work from
training, he spoke with SMO and conducted an investigation because
SMO had complainant "listed as AWOL, which is in the procedure, and
that's what I would have done also if they [were] scheduled to come to
work and they didn't show up." The Supervisor stated that it was his
practice to post employees' schedule in the official posting area and
"make a courtesy copy, and I would keep it in the shop in my office in
the shop, which was something that didn't have to be done. It was simply
a courtesy copy." The Supervisor stated that during his investigation,
he found the subject holiday schedule that SMO posted behind a locked
glass in the official posting area; and that the scheduled showed
that complainant was scheduled to work overtime on November 22, 2003.
The Supervisor stated that SMO did everything he was supposed to do,
but that complainant did not check the Thanksgiving holiday schedule
in the official posting area. The Supervisor stated that because SMO
did not post a courtesy copy of the Thanksgiving holiday schedule in his
office located from off the Maintenance Shop, complainant "may have been
accustomed to seeing that courtesy copy there."
The Supervisor stated that during his interview with SMO, he felt that
because the courtesy copy was not posted in his office located off
from the Maintenance Shop, complainant should not be charged with AWOL.
Furthermore, the Supervisor stated that complainant "was not going to
be paid for it because he was scheduled to be at work rightfully, but
I wasn't going to take any corrective action from that, and I felt like
that was a win-win for the company as well as the employee."
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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 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 Douglas, 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. 248, 253 (1981). Once the agency has 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 actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown
that the agency's articulated reasons were a pretext for discrimination.
Therefore, we find that the agency's final action implementing the AJ's
finding of no discrimination was proper and is AFFIRMED.
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
March 7, 2006
__________________
Date