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