01A32487_r
12-11-2003
Larry J. Marshall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry J. Marshall v. United States Postal Service
01A32487
December 11, 2003
.
Larry J. Marshall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32487
Agency Nos. 4H-350-0132-01
1H-366-0020-01
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning two consolidated equal employment opportunity (EEO) complaints
of unlawful 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.
The record reveals that during the relevant time, complainant was employed
as a Flat Sorter Operator at the agency's Mobile Processing & Distribution
facility in Mobile, Alabama. Complainant sought EEO counseling and
subsequently filed two formal complaints on July 27, 2001 (Agency
No. 4H-350-0132-01) and October 12, 2001 (Agency No.1H-366-0020-01),
alleging that the agency had discriminated against him on the bases of
race (African-American) and sex (male) when:
(1) on May 19, 2001, he was denied the opportunity to work on his
non-scheduled day; and
(2) on July 21, 2001, he was not brought in to work overtime.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its final decision, the agency concluded that complainant failed to
prove a prima facie case of race and sex discrimination. The agency
stated that assuming arguendo complainant established a prima facie case
of discrimination, the agency articulated a legitimate non-discriminatory
reason which complainant failed to show was pretextual. Regarding claim
(1), the agency noted that the evidence shows that complainant did not
possess the necessary scheme knowledge needed for the overtime opportunity
on May 19, 2001. Regarding claim (2), the agency stated that there
was no need to schedule complainant on his non-scheduled day on July 21,
2001, as three clerks were brought in for make-up overtime in accordance
with the American Postal Workers Union (APWU).
A claim of disparate treatment is 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.
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. 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. 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. U.S. Postal
Service Bd. 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).
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. With regard to claim (1),
the record indicates that complainant was not scheduled to work his
non-scheduled day on May 19, 2001, because he did not possess the
necessary scheme knowledge needed. The record in the instant case
contains an affidavit from the Manager Distribution Operation Tour
1 (MDO). Therein, the MDO stated that the three employees that were
brought in to work on their non-scheduled day had different skills which
complainant did not possess. Specifically, the MDO stated �the people
worked overtime had different secondary from that of [Complainant],
who was a zone 9 clerk and the two employees who worked were zone 8
and Branches. Which are entirely different from the complainant.� The
Commission finds that complainant failed to submit evidence showing that
the agency's proffered reason for denying him the opportunity to work
his non-scheduled day on May 19, 2001, was a pretext for discrimination.
Regarding claim (2), we find that complainant failed to submit evidence
that his Supervisor discriminated against him by not giving him the
opportunity to work overtime on July 21, 2001. The record contains an
affidavit from complainant's Supervisor, stating that two female employees
were brought in for make-up overtime on July 21, 2001, �in accordance
with the USPS/APWU Joint Contract Application (JCA) - SE/SW Areas Page
76, Number 33 and Number 32.� The Supervisor further stated that he did
not schedule the overtime for July 21, 2001; and that complainant left
work on sick leave on July 20, 2001, prior to the overtime schedule for
July 21, 2001. The Commission finds that complainant failed to submit
evidence showing that the proffered reason regarding not being provided
overtime was a pretext for discrimination.
Therefore, the agency's final decision finding no discrimination is
AFFIRMED.
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
December 11, 2003
__________________
Date
1For purposes of clarity, the Commission has numbered complainant's
claims as claims (1)-(2).