01A52813
07-18-2006
Kevin A. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kevin A. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A52813
Agency No. 4C-440-0146-04
DECISION
On March 7, 2005, complainant filed an appeal from the agency's February 8,
2005 final decision 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. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
At the time of events giving rise to this complaint, complainant worked as
a PS-05 General Clerk at the agency's Vehicle Maintenance Facility (VMF) in
Akron, Ohio ("facility"). The record indicates that complainant was
reassigned from the Carrier craft to a Modified Clerk rehabilitation
position in the facility's stockroom due to an on-the-job injury to his
back. The record establishes that due to his injury and physical
restrictions, the agency made complainant a rehabilitation job offer in
2001, for the Modified Clerk position at the VMF; complainant accepted the
job offer pursuant to a Settlement Agreement dated June 20, 2003. The
record further indicates that complainant and two co-workers at the
facility work in the stockroom and share responsibilities. Investigative
File (IF) at Exhibit 7. The record further indicates that for the quarter
between January 1, 2004 and March 31, 2004, complainant and a stockroom co-
worker (W1) signed the list to work overtime. IF at Exhibit 10. However,
the record establishes that W1 worked 52 hours of overtime during the
relevant quarter, while complainant worked 16 hours of overtime during the
same period.
On March 15, 2004, complainant contacted an EEO Counselor and filed a
formal EEO complaint on June 7, 2004, alleging that he was discriminated
against on the basis of disability (on-the-job back injury) when from
January 1, 2004 through March 31, 2004, he was not afforded the opportunity
to work overtime.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal 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). When complainant did not request
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the
agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
The agency's final decision (FAD) considered complainant's allegation of
disability discrimination and noted that complainant stated that he suffers
from back pain due to an on-the-job injury. The FAD also noted that
complainant failed to submit documentation that his back condition
substantially limits one or more of his major life activities. Further,
the FAD noted that the evidence of record did not establish that
complainant is considered disabled by agency management. As such, the FAD
concluded that complainant was not covered by the provisions of the
Rehabilitation Act. In addition, the FAD found that complainant failed to
identify similarly situated employees outside his protected group who were
scheduled to work overtime during the relevant time period, or provide
information on the duties performed on overtime. As such, the FAD found
that it could not be determined if employees outside his protected groups
were treated more favorably under similar circumstances, and thus he failed
to establish a prima facie case of disability discrimination.
The FAD then found that the evidence demonstrated that the agency
articulated a legitimate, nondiscriminatory reason for its action. The FAD
noted that the facility's Supervisor, Vehicle Supplies ("Supervisor"),
stated that while complainant was available to work overtime during the
period at issue, he was not assigned to perform overtime as it was not
needed from Clerks during the period between January and March of 2004.
Further, the FAD found that complainant did not hold a bid position within
the VMF, and the Supervisor stated that he was required to assign overtime
first to those with bid assignments. The FAD noted that complainant was on
the overtime desired list and worked 16 hours of overtime during the period
at issue, and that he was not restricted from working overtime due to his
back injury.
The FAD found that the preponderance of the evidence established that
complainant failed to proffer evidence that the agency's articulated
reasons for its actions were more likely than not a pretext for
discrimination. The FAD concluded that complainant failed to present
evidence which indicated that any agency official acted with discriminatory
animus toward him due to his alleged disability. On appeal, complainant
alleged that the fact he held a rehabilitation position with the agency is
proof that he is covered by the Rehabilitation Act. In addition,
complainant alleged that his rehabilitation position with the agency
evidences that he was regarded as being disabled by facility management,
and the facility's Stockroom Storekeeper worked 56 hours of overtime during
the period at issue while he worked only 16 hours of overtime. The agency
has responded to complainant's appeal, urging the Commission to affirm the
FAD.
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").
Generally, discrimination claims are examined under the three-part 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
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. See McDonnell
Douglas, 411 U.S. 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 actions. See Texas Dep't 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 Cen. v. Hicks, 509 U.S.
502 (1993).
For the purpose of our analysis, we assume, without finding, that
complainant is an individual with a disability. In addition, the McDonnell
Douglas prima facie inquiry may be dispensed with in this case, because the
agency has articulated a legitimate and nondiscriminatory reason 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). The facility's Supervisor (who
was also complainant's Supervisor) stated that while complainant was on the
overtime desired list for the quarter at issue, he was not assigned as much
overtime as W1 as she had a bid position and union contracts required him
to assign overtime to those with bid positions first. Further, the
Supervisor stated that complainant was not assigned to work as much
overtime as W1 during the relevant quarter, as overtime was not needed
within complainant's job classification. The record indicates that
complainant had the classification of General Clerk, while W1 was
classified as a Storekeeper, Auto Parts, although they share
responsibilities.[1] To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. Complainant has not shown that the agency's stated
reason(s), compliance with union agreements and lack of a need for overtime
within complainant's job classification, was a pretext. We also find that
W1 was given more overtime than complainant consistent with the union
agreements as she had a bid assignment at the VMF. Complainant failed to
present evidence that the agency's actions were motivated by discriminatory
animus toward his alleged disability. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
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
__7-18-06________________
Date
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[1] We note that while complainant was classified as a Modified General
Clerk, due to his rehabilitation assignment, he had no bid assignment at
the facility.