James P. Flynn, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 6, 2009
0120071071 (E.E.O.C. May. 6, 2009)

0120071071

05-06-2009

James P. Flynn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James P. Flynn,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071071

Agency No. 1E-801-0049-06

DECISION

On December 14, 2006, complainant filed an appeal from the agency's

November 17, 2006 final action concerning his equal employment opportunity

(EEO) complaint alleging employment discrimination in violation of

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. For the following reasons, the

Commission AFFIRMS the agency's final action.

At the time of events giving rise to this complaint, complainant worked

as a Mail Processing Clerk at the agency's work facility in Denver,

Colorado.

On May 8, 2006, complainant filed an EEO complaint wherein he claimed

that he was discriminated against on the basis of reprisal for prior

protected EEO activity under the Rehabilitation Act when:

1. On January 16, 2006, complainant was denied the opportunity to work

more than eight hours on the Martin Luther King holiday.

2. On January 24, 2006, a representative from Labor Relations was allowed

to attend a caucus during a mediation session on a prior complaint

complainant had filed.

3. On January 27, 2006, complainant was called into the office for

working overtime on a Saturday without permission.

4. On June 12, 2006, complainant was denied the opportunity to work two

hours of after tour overtime.

The agency accepted claims (1) and (4) for investigation. Claims

(2) and (3) were dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

on the grounds of failure to state a claim. The agency determined

the complainant did not suffer a personal deprivation as result of the

alleged actions. Further, with regard to claim (2), the agency stated

that EEOC regulations state that nothing said or done during attempts

to resolve a complaint through alternative dispute resolution such

as a redress mediation can be made the subject of an EEO complaint.

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). In accordance with

complainant's request, the agency issued a final action pursuant to 29

C.F.R. � 1614.110(b). The agency determined that complainant failed to

prove that he was subjected to discrimination as alleged.

The agency noted with regard to claim (1) that complainant worked the

Martin Luther King holiday as a volunteer. According to complainant,

management called two hours of overtime for all volunteers yet the Acting

Supervisor, Distribution Operations, never notified him of the overtime

requirement. The agency stated that complainant worked eight hours on

the holiday and also received holiday pay. Complainant began his tour

at 6:50 a.m. and ended his tour at 3:00 p.m. The agency determined that

complainant failed to establish a prima facie case of reprisal. According

to the agency, the Acting Supervisor stated that she was unaware of

complainant's prior EEO activity. The Acting Supervisor stated that the

policy for selecting employees for overtime work is that overtime is

normally called within a specific section and called for employees on

the overtime desired list. The Acting Supervisor further stated that if

more overtime is needed, employees from the overtime desired list outside

the section may be called depending on their skills and availability.

The agency noted that although complainant's name appeared on the overtime

desired list, he did not volunteer for overtime work. According to the

agency, the designations "BT/AT" for begin tour-after tour overtime has an

"N" or no designation beside complainant's name. The agency maintained

that there was no contractual obligation to contact complainant for

overtime work on January 16 because the voluntary overtime desired list

provided sufficient numbers of qualified and eligible employees.

The Acting Supervisor explained that on January 16, 2006, overtime

work was needed from 1:00 p.m. to 3:00 p.m. She stated that the

overtime requirement was called on employees in the manual operation

that report for work at 4:30 a.m. and normally conclude their tour

at 1:00 p.m. The Acting Supervisor noted that complainant reported to

work at 6:30 a.m. and that therefore he was not available or eligible

for overtime at 1:00 p.m. The agency noted that although complainant

may have verbally volunteered for overtime work on January 16, 2006, the

collective bargaining agreement provides that he must volunteer during the

two week period prior to the start of the quarter. The agency determined

that complainant was not asked to work after tour overtime because the

overtime work was assigned consistent with the stipulations contained

within the collective bargaining agreement. According to the agency,

although a coworker reported for work at the same time as complainant and

worked two additional hours and was paid overtime, she was not similarly

situated to complainant because complainant's name did not appear as a

volunteer for overtime during the first quarter of 2006.

With regard to claim (4), the agency noted that this claim concerns

complainant's belief that he should have been allowed to work a total

overtime of four hours for June 12, 2006. The agency acknowledged that

a non-volunteer worked two hours of overtime in error. According to

the Acting Supervisor, the non-volunteer coworker misunderstood that

she was mandating non-volunteers for overtime. The agency noted that

all other individuals who worked overtime on June 12, 2006, were on the

voluntary overtime desired list. The agency determined that complainant

failed to establish that overtime work was needed after 5:00 p.m. or

that there was any contractual entitlement for the additional overtime

work hours. The agency determined that complainant failed to demonstrate

that its assertions were inaccurate or pretextual. The agency determined

that no evidence was presented to establish that reprisal occurred.

On appeal, complainant contends that the Acting Supervisor was aware

of his prior EEO activity. Complainant claims that the collective

bargaining agreement states that the overtime desired list is not used

for holiday scheduling.

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").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish 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 Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

We shall first address the agency's dismissal of claims (2) and (3) on

the grounds of failure to state a claim. We find that the agency properly

determined that the matters at issue failed to state a claim. Complainant

did not establish that he suffered harm to a term, condition or privilege

of his employment as a result of the Labor Relations official attending

the mediation meeting or being called into the office for working overtime

without permission. Accordingly, the agency's dismissal of claims (2)

and (3) was proper and is AFFIRMED.

We shall assume, arguendo, the complainant established a prima facie

case of reprisal with regard to claims (1) and (4). We find that the

agency articulated legitimate, nondiscriminatory reasons in claims (1)

and (4). Complainant attempts to establish pretext with regard to claim

(1) by arguing that the collective bargaining agreement does not provide

for the use of the overtime desired list for holiday scheduling. We find

that complainant has not shown that the collective bargaining agreement

bars the use of the overtime desired list for actual overtime work on

a holiday. Furthermore, with regard to complainant's contention as to

claim (1) that the Acting Supervisor was aware of his prior EEO activity,

we find that the submission of forms on appeal showing that complainant

reported unsafe work conditions in 2005, does not establish that he was

engaged in EEO activity for which the Acting Supervisor would have been

aware. Complainant has not shown with regard to either claim (1) or claim

(4) that the agency's stated reasons for its actions were pretextual.

Therefore, we find that complainant was not discriminated against on

the basis of reprisal.

The agency's final action finding no discrimination with regard to claims

(1) and (4) and dismissal of claims (2) and (3) is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

May 6, 2009

__________________

Date

2

0120071071

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120071071