0120092196
08-03-2009
Keith D. Kitchin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith D. Kitchin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092196
Agency No. 4E-590-0014-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 2, 2009 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a City Carrier, Q-01, at the agency's Great Falls Post Office in Great Falls, Montana.
On April 12, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of sex (male), age (over 40), and in reprisal for prior EEO activity when:
on May 10, 2007, his request for a transfer from the Great Falls, Montana facility to the Big Sky District was denied because of his attendance records.1
The record reflects that complainant requested a transfer to the agency's Missoula Post Office in Missoula, Montana (Big Sky District). Complainant alleged that a named female comparator was treated more favorably than him when she was given a transfer to the agency's Butte, Montana Post Office. The record reflects that between January 7, 2006 and January 5, 2007, complainant used 160.6 hours of annual leave, 71.5 hours of sick leave and 48 hours of unscheduled leave. The record reflects that from October 28, 2006 to October 19, 2006, the female comparator used 142.22 hours of annual leave, 69.5 hours of sick leave and 276.1 hours of leave without pay.
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 decision on January 2, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 2, 2009 final decision, the agency found no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of sex, age and reprisal discrimination. The agency found that there was no evidence that the above referenced comparator incurred unscheduled leave; and that she did not apply for, and was not given, a transfer to the Missoula Post Office. The agency found further that the comparator applied for and was granted a transfer to the Butte Post Office. The agency also found that reassignment records indicated that between September 2006 and June 2007, nine other employees applied for transfer to the Missoula Post Office, but only two applicants (a male and a female) were granted transfers. The agency found that of the two successful transfer applicants, one was the same age as complainant, and the other was one year younger. Regarding reprisal, the agency acknowledged that the timeframe between complainant's protected activity and the alleged discriminatory action was short enough to support an inference of reprisal, but that "the remainder of the evidence" outweighed this inference.
The agency further found that assuming, for the sake of argument only, that complainant established a prima facie case of sex, age and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions (unacceptability of complainant's attendance record due to excessive amount of unscheduled absences) which complainant failed to show were a pretext for discrimination.
The Manager Post Office Operations (M1) stated that he supported management's denial of complainant's request for transfer "after reviewing [complainant's] attendance records. Specifically, M1 stated that complainant was denied a transfer based on his "excessive unscheduled absences." M1 further stated that complainant's sex, age and prior protected activity were not factors in management's decision to deny his transfer request. M1 stated while he was not the approving official of the named female comparator's transfer, he supported the local management "in their decisions based on the facts."
The Customer Relations Coordinator (C1) of the agency's Missoula, Montana facility stated that "the Missoula office considers three factors in determining the acceptance of a transfer request. These factors are attendance, safety, and current disciplinary action." C1 further stated that "as a condition of employment, employees (and candidates for transfer) are expected to be in regular attendance and to work safety. The office, like any other office, is justified in denying a transfer request for an employee who can not demonstrate these attributes."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
August 3, 2009
__________________
Date
1 On April 18, 2008, the agency dismissed the instant formal complaint on the grounds of untimely filing of the complaint and untimely EEO Counselor contact. On appeal, the Commission reversed the agency's dismissal and remanded the matter to the agency for further processing. Kitchin v. USPS, EEOC Appeal No. 0120082587 (July 29, 2008). Following the Commission's decision, the agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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