01a54489
11-15-2005
Gerald A. Kopciowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald A. Kopciowski v. United States Postal Service
01A54489
November 15, 2005
.
Gerald A. Kopciowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54489
Agency No. 1B-141-0025-04
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal 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 a Full-time
Regular General Expediter, PS-06, at the agency's Buffalo Processing and
Distribution Center in Buffalo, New York. Complainant filed a formal
complaint on July 12, 2004. Therein, complainant claimed that he was
discriminated against in reprisal for prior EEO activity when:
(1) since February 23, 2004, and continuing, changes have been made to
his job site; his work area was relocated; and he has not been provided
with the same level of assistance as his co-worker.
On August 2, 2004, the agency issued a document identified as �Acceptance
of Complaint.� Therein, the agency accepted for investigation
claim (1). However, the agency noted that in his formal complaint,
complainant had also expressed dissatisfaction with the processing
of a prior EEO complaint ( identified as Agency No. 1B-141-0013-03).
The agency determined that the proper recourse for complainant to express
his concerns was within the processing of Agency No. 1B-141-0013-03,
and not in the instant case. The agency noted that an inquiry would be
conducted, and that a �separate document� would be issued, concerning
the investigation of Agency No. 1B-141-0013-03.
On an unknown date, complainant requested that the instant complaint be
amended to include the additional claim that he was discriminated against
on the bases of sex and in reprisal for prior protected activity when:
(2) by letter dated July 14, 2004, he was instructed to submit his
limited work hour request which forced him to improperly disclose his
confidential medical information.<1>
The record further reflects that by letter dated September 14, 2004,
the agency issued a document identified as "Acknowledgment of Amendment
#1/Partial Dismissal� wherein it dismissed claim (2) pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. However,
on September 24, 2004, the agency rescinded its September 14, 2004
decision and accepted claim (2) for investigation.
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
requested that the agency issue a final decision.
In its May 12, 2005 FAD, the agency concluded that complainant did
not establish a prima facie case of sex and reprisal discrimination.
The agency further found that assuming arguendo complainant established a
prima facie case, management articulated legitimate, non-discriminatory
reasons for its actions. Further, the agency found that complainant
failed to present any evidence which demonstrated that management's
articulated reasons for its actions were a pretext for discrimination.
Regarding claim (1), the record reflects that the Manager of Distribution
(Manager) stated that complainant's work site was relocated by an
industrial engineer in the plant support, based on the redesign of
the Buffalo Processing and Distribution Center. The Manager further
stated that complainant's work area contained "sufficient space for
his breakdown and signage was provided to denote his work area."
With respect to complainant's claim that he has more work and duties
in comparison to his co-workers, the Manager stated that complainant
was required to pick up mail in accordance with his bid position,
from the automation unit, which consisted of 33 pieces of equipment.
The Manager stated that any employee who would have bid on that position
would have been given the same requirement. The Manager stated that
the two co-workers identified by complainant as having less work and
duties than him are assigned to the Transit Unit. The Manager stated
that one of the two co-workers has more seniority than complainant, and
that because of his seniority, this co-worker "picks the flat expediting
job which involves dispatching the mail from the flat unit which consists
of four flat machines." The Manager stated that while complainant "may
have slightly more distance to cover than the West Dock expediters,"
the identified co-workers are in a contractually different section.
Specifically, the Manager stated that the West Dock expediters have
different duties from complainant's duties. The Manager stated that
complainant could have bid successfully on the West Dock expediter
position because he has more seniority than either West Dock expediter.
Further, the Manager stated that the remaining two co-workers identified
by complainant were Mail Processing Clerks, and worked in the manual
distribution of flats. The Manager stated that the Mail Processing
Clerks's responsibilities had no bearing on complainant's bid position.
With respect to complainant's claim that he was not provided the
same level of assistance as his co-workers, the Manager stated that
complainant 's request for help "was denied because there is no basis for
additional assistance;" and that it was management's right to deny his
request in accordance with Article 3 of the National APWU Agreement.<2>
Furthermore, the Manager stated that she did not discriminate against
complainant based on his prior EEO activity.
The record further reflects that the Manager Distribution Operations
(MDO) stated that complainant's work area was relocated because "the
Corporate Headquarters made the decision for a Redesign Plan of the
Buffalo Processing and Distribution Center." MDO further stated that
she was involved in accommodating complainant's work area. Specifically,
MDO stated that "adjustments were made, after the initial redesign plan
was implemented, his work area was moved to [the] other side of [the]
aisle to give him more room and cabinets were moved out of his area."
MDO stated that complainant's work area was then moved by the women's
restroom, "and again moved once again to accommodate his request for
more space." MDO stated "we placed signage in his work area to help
keep other employees from putting equipment in his area, and that seems
to have helped."
With respect to complainant's claim that he was not provided the same
level of assistance as his co-workers, MDO stated that because complainant
has an Expediter position in Automation, he has more machines to service
and has a lot more walking. MDO further stated that complainant was
"comparing himself to other expediters that don't have the same work as
[complainant does]."
Regarding claim (2), the record reflects that on July 14, 2004,
complainant submitted a request for family medical leave under the Family
Medical Leave Act (FMLA) from June 15, 2004 to July 19, 2004, due to a
serious health condition. By letter to complainant dated July 14, 2004,
a FMLA Coordinator approved complainant's FMLA request and enclosed a
"Return to Work" medical clearance form. The FMLA Coordinator further
requested that complainant have his physician complete the Return to
Work form when he is released to return to work. Further, in her
affidavit, the FMLA Coordinator stated that she did not request any
medical information from complainant. The FMLA Coordinator also stated
that she was unaware of complainant's prior EEO activity.
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, 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 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 determines that the agency articulated legitimate,
non-discriminatory reasons for its actions, as discussed above.
Moreover, we find that complainant has not demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
Finally, the Commission determines that in its August 2, 2004 �Acceptance
of Complaint,� the agency properly addressed complainant's claim
concerning his dissatisfaction with the processing of a prior EEO
complaint (identified as Agency No. 1B-141-0013-03). Upon review of the
record, we find that this claim addresses complainant's dissatisfaction
with the processing of his prior complaint. The agency properly
determined that this matter would be investigated separately, and would
not be analyzed within the context of the instant formal complaint.
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
November 15, 2005
__________________
Date
1The record does not contain a copy of complainant's request to have
his complaint amended (claim (2)).
2 Article 3, Management Rights, of the National Agreement between the
agency and the union provided that the employer shall have the exclusive
right to direct employees of the Employer in the performance of official
duties.