0120093371
11-09-2009
Korey J. Dismus, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Korey J. Dismus,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093371
Agency No. 1H-336-0019-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 30, 2009 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.
During the period at issue, complainant was employed as a Mail Processing
Clerk at the agency's Tampa, Florida Processing and Distribution Center.
On January 31, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of disability (on-the-job injury), age (over 40), and in
reprisal for prior protected activity when:
on November 11, 2007, he was not allowed to work the Veterans' Day
holiday.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. However, complainant subsequently withdrew his
request. On May 30, 2009, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that complainant did not establish
a prima facie case of race, disability, age and reprisal discrimination.1
The agency found that assuming, arguendo, that complainant established
a prima facie case of disability, age and reprisal discrimination,
management nevertheless articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext.
The Manager Distribution Operations (MDO) acknowledged that complainant
signed up to work the Veterans' Day holiday. MDO stated, however, that
he did not allow complainant to work the Veterans' Day holiday because
complainant "is unable to perform the duties of the jobs that management
decided needed to be done on this holiday." Specifically, MDO stated that
"holiday scheduling is based upon managements projections of work load and
what work needs to be completed on the day in question. It was determined
that employees who were only able to work manual cases in this work area
were not needed unless they were able to work automation operations.
[Complainant] had previously refused to work any automated operations
based on his restrictions." MDO stated that in addition to complainant,
five named employees volunteered but were not allowed to work on the
November 11, 2007 Veterans' Day holiday.
Further, MDO stated that his decision not to schedule complainant for
the Veterans' Day holiday was in accordance with the "Handbook EL-912
Agreement between the United States Postal Service and American Postal
Workers Union, AFL-CIO, 2006-2010, Article 3, Managements Rights,
Section D - To determine the methods, means, and personnel by which
such operations are to be conducted." MDO stated that his decision was
also in accordance with the Light/Limited Duty provisions contained in
Articles 3 and 8 of the USPS-APWU Joint Contract Interpretation Manual,
June 2004. Specifically, Article 3, page 3 states "when local management
is determining the number and categories of employees needed to work,
factors to be considered in scheduling - light/limited duty employees who
wish to work the holiday, are the medical restrictions imposed by the
individual employee's practitioner and whether the employees could be
used to do the work that is scheduled to be completed on the holiday."
The record further reflects that Article 8, page 11, Number 9 states
"may a full-time employee on limited or light duty be scheduled to work
overtime? Response: 'whether a full time limited or light duty employee
should be scheduled for overtime is dependent upon whether or not the
employee's medical limitations would allow the employee to perform the
needed duties."
On appeal, complainant argues that the record contains evidence that
demonstrates that MDO "intentionally retaliated against [him] by not
selecting him for the Veterans Day work due to his filing EEO charges
which sought to vindicate his rights as a disabled person."
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 after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Complainant, on appeal, 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
November 9, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120093371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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