0120151391
10-27-2016
Lauren F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lauren F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120151391
Agency No. 4G-350-0049-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 30, 2015 final decision concerning an 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., 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Gadsden, Alabama Post Office.
On May 7, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (African-American), color (black), disability (knees), age (over 40), and in reprisal for prior EEO activity when:
1. he was denied overtime hours on December 31, 2012, January 12, 2013, February 6, 9 and 16, 2013, March 2, 2013, and May 10, 2013; and
2. on April 13, 2013, his bid was abolished.
On July 10, 2014, the Agency issued a final decision finding no discrimination concerning claims 1 and 2. On appeal, the Commission affirmed the Agency's finding of no discrimination concerning claim 2. However, the Commission reversed the Agency's finding of no discrimination concerning claim 1 and remanded the matter to the Agency for further processing. Douglas v. United States Postal Service, EEOC Appeal No. 0120141431 (July 10, 2014). Following the Commission's decision, the Agency processed the remanded claim 1 in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
After the supplemental investigation of claim 1, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
In its January 30, 2015 final decision, the Agency again found no discrimination concerning claim 1. The Agency found that Complainant did not establish a prima facie case of race, color, disability, age and reprisal discrimination.2 The Agency further found that assuming Complainant established a prima facie case of discrimination on the raised bases, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The instant appeal followed. Complainant submitted no argument on appeal.
ANALYSIS AND FINDINGS
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 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster first noted , regarding the practice for awarding overtime on Tour 1, that there are three relevant Agency sites: Alabama City, East Gadsden and the main office, and that there was one overtime desired list for all tours. The Postmaster further stated "there is also an overtime tracking list which keeps track of the overtime that was worked by the employees. It's a fiscal quarterly list, but it is summarized by week. We calculate the total of overtime worked by each employee. We use that list in part to determine who should be awarded overtime. We will try to award overtime to the person who has the lowest quarterly amount of overtime to work the overtime available on any day if the employee is available to work on the particular day and if the employee has the skills necessary to perform the work."
Regarding Complainant's assertion that he was denied overtime on December 31, 2012, the Postmaster stated that on that day Complainant's tour of duty was from 3:00 a.m. to 11:00 a.m. The Postmaster stated that Agency management needed someone to work overtime from 11:00 a.m. to 1:00 p.m. The Postmaster stated "at the time that we determined that we needed someone to work overtime we could not locate [Complainant]. My best recollection is that we did not know that we needed someone to work overtime just before 11:00 a.m. When we looked for Complainant to ask him to work overtime we could not find him."
Regarding Complainant's allegation that he was denied overtime on January 12, 2013, the Postmaster stated that according to the Overtime tracking list for that day, two named employees had worked more overtime than Complainant. Specifically, the Postmaster stated that one named employee worked overtime on this date because he was window trained and "he worked on the Window. Complainant is not window trained."
Further, the Postmaster stated that the second named employee was offered overtime because she was already at work and Complainant was off work that day. The Postmaster also noted that three named employees were already working and they also had worked fewer hours of overtime than Complainant.
Regarding Complainant's allegation that he was denied overtime on February 6, 9 and 16, 2013, the Postmaster stated that on February 6, 2013 three named employees worked overtime that day because they were Window trained while Complainant was not. The Postmaster also stated that a named employee worked overtime in business reply "which is her bid job and Complainant does not know how to do business reply."
Regarding the February 9, 2016 overtime opportunity, the Postmaster stated Complainant was off work on that day "so we will not call an employee in for OT on their off day unless we need to. Also, if we call an employee to work OT on their off day, we have to work them a full 8 hours...[named employee's] off day is also Saturday but he worked the Window that day and Complainant is not Window trained. We gave overtime to [two named employees] because they were already at work on that date."
As to the February 16, 2013 overtime opportunity, the Postmaster stated Complainant was on leave on February 15, 2013, and February 16, 2013 was Complainant's off day. The Postmaster stated that February 18, 2013 was a holiday and Complainant on leave on February 19, 2013. Specifically, the Postmaster stated "since Complainant was on leave the day prior to his off day and the day after, we can't call him on his off day because it is the past practice that he is protected from working overtime on that date."
Regarding Complainant's allegation that he was denied overtime on March 2, 2013, the Postmaster stated that Agency management offered a named employee overtime on that day because she has the lowest amount of overtime for the quarter and "we needed someone to work the dock and that's her position." The Postmaster also stated that two other named employees worked overtime that day. The Postmaster stated that March 2, 2013 was a Saturday, and Complainant does not work Saturdays.
Further, the Postmaster explained that if Agency management called Complainant in to work overtime "we would be required to work him work for 8 hours of overtime. In addition, [employee] had worked fewer hours of overtime for that quarter than Complainant. As noted above, I have not been able to find the overtime tracking list for March 2, 2014. However, according to the overtime list for the week of March 16-22, 2014, Complainant had worked 43.76 hours of overtime and [employee] had worked 26.44 hours."
Regarding Complainant's allegation that he was denied overtime on May 10, 2013, the Postmaster stated that a named employee's overtime for that date was "creep time" and "she worked 7 minutes and we did not award her this overtime. In addition, she was working on the Window on this date." The Postmaster stated that another named employee worked overtime on that date at the Agency's East Gadsden facility doing scheme training which Complainant was not trained for at that location.
Further, the Postmaster stated that while a third named employee (E3) was not on the overtime list, he worked overtime on the dock beginning at 11:00 a.m. until approximately 8:00 p.m. The Postmaster stated that E3 worked approximately 23 minutes of overtime at the end of his tour. Complainant worked from 4:30 a.m. until 1:00 p.m. that day and "he was not working at the time [E3] worked overtime on that date and we did not know of the need for the overtime that [E3] performed when Complainant left work."
The Supervisor Customer Service (supervisor) explained that the first and second named employees worked creep overtime "which is unauthorized and wouldn't be available to any other employee." The supervisor stated that E3 worked overtime at the end of his shift at 4:30 p.m. and "we wouldn't call Complainant in at that time to do the work because he is on a different tour and we don't call in an employee on a different tour to work overtime if we have an employee on that tour to work the overtime."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
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 concerning claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability.
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