01A13340_r
07-30-2002
Joseph C. Payne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph C. Payne v. U.S. Postal Service
01A13340
July 30, 2002
.
Joseph C. Payne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13340
Agency No. 4-D-230-0129-00<1>
DECISION
Complainant filed a timely appeal from a final agency decision concerning
his complaint of unlawful employment discrimination brought pursuant to
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. We accept the appeal pursuant to
29 C.F.R. � 1614.405.
In his complaint, complainant, a custodian at the agency's Fredericksburg,
Virginia facility, claimed discrimination on the bases of race (white),
age (46), and reprisal (for filing prior EEO complaints) as evidenced
by the following incidents:
(1) On March 15, 2000, complainant's supervisor questioned him about
his duties and management failed to use a schedule which would provide
fair and adequate custodial staffing;
On March 24 & 28, 2000, the agency selected a less qualified co-worker
for a temporary short-term Vehicle Operator Maintenance Assistant
(VOMA) assignment;<2>
On March 24, 2000, the agency selected a less qualified co-worker for
a VOMA assignment;
On April 28, 2000, the agency selected a less qualified co-worker for
a VOMA assignment.
The agency investigated the complaint, and issued a final decision on
April 11, 2001, dismissing claim 3 on the grounds that it was identical to
claim 2, and then finding no discrimination on the merits with respect to
the remainder of the claims. Regarding its merits determinations, the
agency found that complainant failed to establish a prima facie case of
reprisal, or race and age discrimination. However, even assuming arguendo
that complainant had established a prima facie case on the bases alleged,
the agency found that the responsible management officials articulated
legitimate nondiscriminatory reasons for its actions regarding each
incident, as detailed below.
Regarding claim 1, the agency found that complainant's supervisor
attested that she was unable to locate complainant on the morning at
issue, and that when she finally found him, she questioned him about
what duties he had performed that morning, not because of animus,
but because he was away from his work area. Regarding the scheduling,
the agency indicated that the responsible management official attested
that two custodians had always been assigned to complainant's work area,
but, in light of complainant's concerns, indicated that a study would
be undertaken to see if a rotating custodian should be used.
Regarding claims 2 and 4, the agency found that the responsible management
official attested that selections for VOMA assignments were made according
to Article 25 of the National Agreement which did not mandate selection
of the best qualified candidate. This management official also noted
that the agency and local union had an agreement that the VOMA details
would be assigned on a rotating basis. The agency further found that
complainant failed to demonstrate pretext regarding these reasons,
and provided no evidence to otherwise suggest that discriminatory or
retaliatory animus played a role in any of these actions.
Complainant now appeals this determination.
Dismissal of Claim 3
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or Commission.
We concur with the agency that claim 3 is identical to claim 2 regarding
the March 24, 2000 non-selection for the VOMA detail. Accordingly, we
find that the agency properly dismissed claim 3 pursuant to 29 C.F.R. �
1614.107(a)(1), and we AFFIRM the dismissal of claim 3.
Finding of No Discrimination regarding Claims 1, 2, and 4
The 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 instances. Where, as here, the agency
has articulated a legitimate, nondiscriminatory reason for the action at
issue, the factual inquiry can proceed directly to the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. 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, 1999); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim 1, we find that complainant presents no evidence to show
that his supervisor questioned him for any other than the stated reason,
and provides no evidence of discriminatory or retaliatory animus. As to
the claimed scheduling inequities, we find that complainant generally
asserts that there is too much work for the number of custodians employed
at his facility, and that they lack the same equipment (in particular
a floor scrubber) which a neighboring facility has. However, we find
that complainant submits no evidence to demonstrate the claimed unequal
distribution of work. Furthermore, complainant fails to present any
evidence of pretext regarding the agency's articulated reason, nor does
he submit any evidence to suggest discriminatory or retaliatory animus
associated with the existing custodial scheduling plan and/or equipment
allocation at his facility. Accordingly, we concur with the agency's
finding of no discrimination, and we AFFIRM the final decision regarding
claim 1.
Regarding claims 2 and 4, review of the evidence confirms the veracity
of the agency's proffered reason in terms of the selection criteria
of Article 25 of the National Agreement, as well as the local union
agreement to rotate the VOMA assignments among the qualified candidates.
Complainant's contention that he is always entitled to be selected for
these assignments based on his claimed superior experience as compared
to his co-workers is contrary to these agreements, and is not otherwise
supported by the record.<3> Furthermore, we find that complainant
presents no evidence of pretext, nor does he set forth any evidence to
demonstrate impermissible animus regarding either the selection process in
general or with respect to his own non-selections in particular. In this
regard, we find that the evidence shows that during the pertinent period,
the VOMA details were assigned to all qualified candidates, including
complainant, and that these candidates included members of complainant's
protected classes, as well as members outside of complainant's protected
classes. Accordingly, we concur with the agency's finding of no
discrimination, and we AFFIRM the final decision regarding claims 2 and 4.
In conclusion, we AFFIRM the dismissal of claim 3 and we AFFIRM the
finding of no discrimination regarding claims 1, 2, and 4.
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
July 30, 2002
__________________
Date
1As identified by this complaint number, the agency consolidated the
following complaints: 4-D-230-0129-00; 4-D-230-0132-00; 4-D-230-0133-00;
and 4-D-230-0169-00.
2The agency used temporary assignments to VOMA positions to fill-in when
the permanent employee in the position was on leave.
3We note that in Payne v. U.S. Postal Service, EEOC Appeal No. 01A03867
(August 2, 2001), the Commission affirmed the agency's final action
adopting the decision of an EEOC Administrative Judge dismissing
complainant's complaint for failure to state a claim. Therein, complainant
claimed that he was not selected for a VOMA assignment in favor of a less
qualified co-worker. The Commission determined that this claim concerned
a union matter, outside the purview of the Commission's regulations.
Complainant has filed a request for reconsideration of this decision,
which is pending under Request No. 05A11014. In the instant case, we
find that complainant does not only appear to be directly challenging the
applicable union agreements, but instead claims that his non-selection
regarding particular VOMA assignments were motivated by discriminatory
and retaliatory animus. However, to the extent that the instant claim
challenges the selection requirements mandated by the union agreements,
we find that this portion of the claim fails to state a claim.