0120092052
09-24-2009
Lisa M. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lisa M. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092052
Agency No. 4G-752-0155-08
Hearing No. 450-2008-00323X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 17, 2009 final action concerning her 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.
Complainant, a Part-Time Flexible (PTF) Carrier at the agency's Northwest Station in Longview, Texas, alleged that the agency discriminated against her on the bases of race (African-American), color (black), and in reprisal for prior EEO activity when:
1. on or about January/February 2008, she received 24 hours of annual leave for 40 hours of scheduled annual; her hours were adjusted and cut; and she was not been paid for two sick days; and
2. on or about January/February 2008, she had been harassed in that she was questioned when she came in and when she clocked out; she was observed while performing her duties; and she was threatened about working past 5:30 p.m.
On April 1, 2008, the agency issued a partial dismissal. The agency accepted claim 1 for investigation. The agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The record reflects that a hearing was held before an EEOC Administrative Judge (AJ) on February 10, 2009 concerning claim 1. The record further reflects that during the February 10, 2009 hearing, complainant withdrew her two claims that she was discriminated against when she received 24 hours of annual leave for 40 hours of scheduled leave and she was not paid for two sick days.
After considering the testimony of the witnesses, the AJ issued a decision on March 3, 2009, finding no discrimination concerning complainant's allegation that her hours were adjusted and cut. Therein, the AJ determined that complainant did not establish a prima facie case of race, color and reprisal discrimination. The AJ nevertheless found that the agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
The AJ noted that according to one of complainant's supervisors (S1), he testified that from October 2007 to the spring of 2008, he was responsible for scheduling the PTF carriers. S1 stated that some of the PTF carriers were on mini-bids in which the carrier substituted for regular carriers who were out for at least five days. S1 stated that these mini-bids did not go by seniority but by ability to carry the route. Specifically, S1 stated "what you do is if you have a PTF that puts in a mini-bid, a senior mid-bid, the senior PTF receives that mini-bid for whatever route they bid on. You go down the list as far as who has the mini-bids. If nobody has a mini-bid, you assign them to the routes that they have the most capable abilities of carrying in the least amount of time to save the postal service money." S1 further stated "I go by the abilities of the carrier to perform the duties on that route." S1 stated that he rated complainant last with regard to her ability to case and carry routes because she "doesn't seem to do as efficiently, more methodical casing, trying to stay within the hours or hour that the route is rated at for the office time."
Further, S1 stated that he scheduled carriers who used less overtime more so that he would have less overtime hours overall. S1 stated that he had a discussion with complainant and her union representative about complainant coming in to work early on separate occasions. Specifically, S1 stated that he told complainant's representative "the same way I explained to [Complainant], that the ones that can case more efficiently are the ones that come in early." S1 stated that it was his goal to be the most cost effective so he could use those who case most efficiently. S1 stated "I'm out to save the postal service money and use the efficient people to do the job."
With respect to complainant's allegation that S1 approached a named PTF carrier (C1) in April 2008 to say she needed to clock in early because complainant had filed a grievance and the hours needed to be equalized, S1 denied it. S1 stated that he had scheduled C1 to come in early on several occasions. S1 stated, however, if C1 "was more efficient on the route that was down and I needed her, that's what I would bring her in on."
With respect to complainant's allegation that another supervisor (S2) put him on notice that complainant said that "this looked like another EEO to me," S1 stated "I don't recall that." S1 stated that the schedule is posted the Wednesday prior to the following work week. S1 stated that if a carrier came in early it was usually not on the schedule. S1 further stated that he would look at the mail volume and let the specific carrier to come in early the next day. Specifically, S1 stated "if you're there during the day and you see the workload is heavy for the next day you tell them before they go home or leave a note in their time card." S1 stated that he scheduled complainant "on the routes that she had already been proficient on if they were vacant." Furthermore, S1 stated that he did not discriminate against complainant based on her race, color and prior protected activity.
With respect to complainant's allegation that on April 10, 2008, other carriers were allowed to clock on earlier than her and she was told not to clock on, S2 testified "Yes. We had a route down that day. I told [named carrier], she had come in to go ahead and clock on in, to start a route that we had down. [Complainant], she came in about three minutes till her scheduled clock in time and I just told her to wait for her regular clock time to clock in." S2 stated that the PTF carriers occasionally came in earlier if a route was down. Specifically, S2 stated "if we had routes down I would schedule someone to come in earlier to case a route, someone who was more familiar with the route." S2 stated that he did not schedule complainant to come in early because she "just wasn't fast. I guess she just - - she wasn't efficient at putting the route up. She just wasn't quick as some of the other PTFs I use." Furthermore, S2 stated that complainant's race, color and prior protected activity were not factors in his determination not to have her come in early.
Another supervisor (S3) testified that during the relevant time, complainant never asked him if she could come in before 7:30 a.m. S3 stated that the districts were trying to decrease overtime in 2008 and eliminate overtime for PTF carriers. Specifically, S3 stated that the districts are "trying - - it's getting to a point where they're trying to make it where PTFs do not get any overtime. They're shooting for a 3 percent right now is the goal and leaning towards eventually going down to zero percent." S3 stated that he started scheduling carriers at the end of June 2008 or the beginning of July 2008. S3 stated it was management's responsibility to assign carriers to routes and determine who was the most productive.
On appeal, complainant argues that the AJ erred in finding no discrimination. Complainant further argues, for example, the AJ erred in finding that complainant did not establish a prima facie case of race and reprisal discrimination. Complainant argues that S1 and S2 were aware of her prior protected activity and that they "allowed similarly situated Caucasian PTF Letter Carriers to clock on early whereas the appellant, who is African-American was not allowed to clock on early."
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.1
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
September 24, 2009
__________________
Date
1 On appeal, complainant does not challenge an agency April 1, 2008 partial dismissal regarding claim 2. Therefore, we have not addressed this issue in our decision.
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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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