0120071018
06-14-2007
Ex Kano Sams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120071018
Agency No. 4F-900-0164-05
DECISION
On December 11, 2006, complainant filed an appeal from the agency's
November 6, 2006, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
On July 12, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when: (1)
on March 9 and 30, April 6, May 3 and June 22, 2005, his Supervisor (S1)
required that he perform the additional task of delivering Express mail
items and failed to compensate him appropriately; and (2) on March 4,
2005, S1 required him to work overtime although he was not on the overtime
desired list.
The record establishes that complainant was employed as a Full-time
City Carrier at the agency's Village Station Post Office in Los Angeles,
California ("facility"). Complainant alleged that S1 and the facility's
Manager of Customer Services (MCS) retaliated against him for his prior
EEO activity, which occurred in 1999. Believing he was the victim
of discrimination, complainant sought EEO counseling and filed the
aforementioned formal complaint of discrimination.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ).1 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) concluding that complainant failed to prove that he was
subjected to discrimination as alleged.
The final decision found that complainant failed to establish a
prima facie case of retaliation, as his most recent EEO activity
occurred over five (5) years prior to the earliest incident alleged by
complainant. The final decision conceded that S1 and the MCS were aware
of complainant's prior EEO activity, but found that the more than five
(5) year period between the EEO activity and the alleged discriminatory
conduct was insufficient to establish the required causal connection
for retaliation. In addition, the final decision found that management
articulated legitimate, nondiscriminatory reasons for its actions which
were not pretextual in nature. The final decision found that complainant
was not asked to perform additional tasks, as delivering Express mail
was part of his duties. The final decision noted that the standard
job description of City Carriers includes delivering parcel post and
Express mail. Investigative Report (IR) at Exhibit 2; Affidavit B.
The final decision noted that S1 stated: (1) if a Carrier has Express
mail assigned to their route, they are expected to deliver it before
12:00 P.M.; and (2) when Express mail is delivered within the Carrier's
tour of duty, the Carrier is not entitled to additional compensation.
Regarding the dates at issue, S1 stated that complainant was not assigned
additional tasks that required additional compensation as the delivery
of Express Mail was part of each Carrier's required duties.
The final decision also stated that, on March 4, 2005, complainant was
required to deliver mail during his tour of duty, with no overtime.
IR at Exhibit 8. S1 stated that complainant may have had a "drive out
agreement" at one time which would have compensated him for mileage
when he used his own vehicle. However, S1 noted that, on the date at
issue, complainant was driving a postal vehicle and was not entitled
to additional compensation. The final decision noted S1's statement
that the mail which complainant was required to deliver was either
regular or Express mail, which was to be delivered during his regular
tour of duty. In addition, the final decision found that the agency's
area Manager of Labor Relations stated that regardless of whether a
Carrier has a drive out agreement, complainant would only be eligible
for overtime pay if he went over eight (8) hours per day or 40 hours
per week. IF at Affidavit D and Exhibit 13. The record indicated that
complainant was not required to work overtime, but was asked to return to
the facility to deliver additional mail. Final Decision at 5. Finally,
the agency's decision found that complainant failed to proffer evidence
which established that its articulated reasons for its actions were
pretextual in nature. In so finding, the final decision noted that,
according to S1, the comparison employees cited by complainant would
only have been paid overtime if they worked over eight (8) hours per day
or worked on a scheduled day off. IF at Affidavit B and Exhibits 8-9.
Complainant has submitted no arguments in support of his appeal.
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 EEOC Management
Directive 110, 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").
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
The Commission agrees that complainant failed to establish a prima facie
case of reprisal, as the more than five (5) year period between his
prior EEO activity and the actions as alleged in the instant complaint
were insufficient to demonstrate the required nexus. Notwithstanding,
we find that assuming, arguendo, that complainant established a prima
facie case of reprisal, his claim would still fail because the agency
articulated legitimate nondiscriminatory reasons for its action(s),
namely, that: (1) delivering Express mail was part of complainant's tour
of duty on the dates at issue, and he was not entitled to additional
compensation as he was not assigned additional tasks; and (2) the time
and attendance records for March 4, 2005 indicated that complainant
worked eight (8) hours with no overtime. We find that complainant has
presented no evidence showing that the agency's reasons were pretext for
discrimination. The Commission is mindful of complainant's contention
that other facility employees received overtime pay while he did not.
Nonetheless, we find that the record does not show that any similarly
situated employees were treated more favorably. In fact, the agency's
documentation notes that agency employees would only have been paid
overtime if they worked over eight (8) hours on the day they worked or
worked on a scheduled day off. However, on the date at issue, there is
no evidence that complainant worked over eight (8) hours or worked on
a scheduled day off. IF at Affidavit B and Exhibits 8 and 9.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final 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
______6/14/07____________
Date
1 The record indicates that complainant's claim was initially dismissed
by the agency for failure to state a claim on October 4, 2005. On April
25, 2006, the Office of Federal Operations (OFO) remanded the complaint
to the agency for further processing. Complainant disagreed with the
accepted issues in his complaint as defined by the agency and OFO, but
the agency rejected complainant's protest as the issues raised were the
same as those alleged in his formal complaint.
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0120071018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071018