0120143073
05-19-2016
Jody L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
Jody L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120143073
Agency No. 4G-350-0021-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 28, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Review Clerk at the Agency's Gadsden, Alabama Post Office.
On February 24, 2014, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him on the bases of race (African American), color (Black), disability, age (57), and in reprisal for prior EEO activity when beginning in October 2013, he was denied overtime work.
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on July 28, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency noted the Postmaster stated that during the relevant period, Complainant was not denied overtime. The Postmaster further stated that from October 18, 2013 to October 20, 2013, Complainant was unavailable for work. Specifically, the Postmaster stated that "[O]n 19 Oct - 20 Oct [Complainant] was unavailable for work. He was on sick leave on 18 Oct and was on 19 & 20 October."
The Agency acknowledged that a Union official stated that he witnessed Agency management overlooking and bypassing Complainant on the overtime list. However, the Agency noted that Complainant stated that no grievance had ever been filed on this issue.
Moreover, the Agency found that employees whom Complainant had maintained were treated more favorably regarding overtime held different positions, worked different hours, had different non-scheduled days, and were on different overtime lists. The Agency expressly noted, for example, that one employee (Ms. B) had a scheduled work day allowing her overtime was at 11:50, or in the middle of Complainant's tour; that several other employees (Ms. S and Mr. B) had overtime which would begin at 20:50, which was five hours after Complainant ended his tour of duty; that the overtime worked by Ms. B on her non-scheduled day always began at or before her scheduled begin tour, which was at least three hours before Complainant's begin tour; and that Complainant was not eligible to work the overtime worked by Mr. B on his scheduled day off of Wednesday, because that was a normal work day for Complainant.
Based on this evidence, the Agency found that Complainant did not establish a prima facie case of race, color, disability, age and reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of race, color, disability, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The instant appeal followed.
The record also shows that on May 17, 2013, Complainant had previously filed an earlier EEO complaint (Agency No. 4G-350-0049-13) , claiming discrimination on the basis of race (African-American), color (black), age (57), disability and in reprisal for prior protected activity when he was denied overtime hours in December 2012, January to March 2013, and in May 2013.2 On January 13, 2014, the Agency issued a final decision, finding no discrimination.
Complainant appealed that decision (EEOC Appeal No. 0120141431) and submitted documentation on grievances he and others had filed, regarding overtime denial on the above dates, and argued that the reasons that an Agency official provided in the grievance process for overtime denials were inconsistent with the reasons provided in the EEO investigation.
In EEOC Appeal No. 0120141431 (July 10, 2014), we reversed the Agency's finding that no discrimination had been established with regard to the denial of overtime claim, and remanded the matter back to the Agency for it to "reinvestigate" the claim in accordance with the specific guidance identified in the Commission's decision.3
In our decision, we noted that a key question was whether Complainant was asked to perform overtime work approximately the same number of times as other clerks on the tour 1 overtime desired list, or whether he was one of the only employees skipped over an overtime desired list, and only treated fairly after filing grievances. The record was devoid of information on this point. We noted further that the Agency should clarify the proper practices for the issuance of overtime. Moreover, we noted the record required "decipherable documentation (with explanation of what it means, if necessary)" identifying who worked overtime on the dates in question in place of Complaint, and the hours involved on each date. Furthermore, we noted that an Agency official's responses regarding Complainant's overtime schedule had changed, without explanation, and that an explanation was necessary. Finally, we noted that one Agency official had little recollection of events, and that another Agency official did not submit an affidavit.
In the instant appeal, Complainant makes specific reference to the circumstances regarding his prior complaint, discussed more fully above. Further, Complainant stated that in its final decision, the Agency claimed the comparators had different grades and "again, nowhere in the record on appeal, specifically including the Investigative File, is there any claim, whatsoever, that pointed to a different pay grade as being a valid factor in determining who was entitled to be given first opportunity to work any available overtime." Moreover, Complainant argued that the Agency did not provide an explanation on how various tours are to be treated differently.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For a 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
We first note that the instant case cannot be considered in a vacuum. Rather, it must be construed in the context of Complainant's prior case, discussed above, which had addressed purported overtime denials in a period less than one year before the October 2013 overtime denial claim identified in the subject complaint. Following the appeal of the Agency final decision in that prior complaint, the Commission determined that a "re-investigation" of the overtime claim was in order, due to among other matters, inconsistencies in the statement of an Agency official; lack of appropriate, or "decipherable" information relating to various aspects of the overtime denial issue.
In that vein, we presently determine that the instant matter should similarly be remanded, for somewhat similar reasons. To wit, the record in the present case contains an affidavit from an Agency official who has little knowledge of the issue; and the statement of a union official who witnessed Complainant being bypassed on the overtime list. While in the instant case, the Agency notes that despite the statement of the union official, Complainant had filed no grievance. However, a review of the prior complaint reflects numerous grievances had been filed. Finally, we acknowledge that in support of its finding of no discrimination, the Agency in the instant complaint submits a variety of documents as exhibits, with insufficient annotation reflecting how Complainant's overtime hours matched in comparison with other employees. We therefore determine that the instant case merits a "reinvestigation" in a manner similar to that which the Commission ordered in Appeal No. 0120141431.
The Agency's finding of no discrimination of the instant complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to reinvestigate the instant complaint in accordance with the specific guidance in this decision and 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded complaint within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the new investigative file and issue a decision on the merits of the instant complaint which is appealable to the Commission. The Agency shall complete these actions within one hundred eighty (180) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time.4
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 19, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 A separate claim raised in that formal complaint is not relevant to this instant appeal
3 We note that the Agency completed its investigation on this claim, and issued a new final decision, again finding no discrimination. This decision is currently pending on appeal before the Commission, under Appeal No. 0120151391.
4 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
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0120143073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120143073