0120083929
03-06-2009
Mariano E T. Balbago, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mariano E T. Balbago,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083929
Hearing No. 531-2008-00090X
Agency No. 4K-200-0094-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 13, 2008, dismissing his complaint 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the relevant period, complainant was employed as a part-time
flexible (PTF) Sales Services/Distribution Associate at a Maryland
facility of the agency. In a formal EEO complaint dated June 26, 2007,
complainant alleged that the agency subjected him to discrimination on
the bases of race (Asian) and age (over 40) when it (1) lengthened his
work day by extending his lunch break from sixty minutes to ninety,
(2) forced him and others to work in unhealthy conditions by refusing
to repair facility air conditioning, (3) since July 2005, forced him to
use his personal vehicle for daily work-related travel without mileage
reimbursement, (4) in 2005 and 2006, failed to provide him a uniform
allowance, and (5) in October 2006, did not compensate him for attending
training.
In a partial acceptance/dismissal letter, the agency accepted (1) and
(3) for investigation, dismissed (4) and (5) for untimely EEO contact,
and did not address (2). Complainant acknowledged that he brought forth
his claim in an untimely manner, but stated that he did so in fear of
retaliation. The agency conducted an investigation of accepted claims.
During the agency investigation, a customer service manager (S1) stated
that complainant and three others held part-time flexible (PTF) clerk
positions that are flexible in work schedule, days off, and duty station.
He stated that the four PTF clerks worked at three stations under his
supervision each day and were not reimbursed travel mileage because
they are "on the clock" during travel time to a regular duty station.
S1 added that the lunch time of PTF clerks varies between thirty
minutes and two hours depending upon their start time and their work
location to prevent the clerks from working more than ten hours per day.
The agency indicated that, for PTF clerks, hours in excess of ten hours
per day or fifty six hours per week are considered "penalty overtime,"
which has to be paid at 2.5 times regular rate so is highly discouraged
and can only be approved by upper level management. The agency stated
that the schedule of the PTF clerks is based on the needs of the agency.
The agency added that the work locations are about a mile apart.
Following its investigation, the agency informed complainant of the
right to request a hearing before an EEOC Administrative Judge (AJ) or
an immediate final agency decision. Complainant requested the former.
The assigned AJ considered a Motion for Summary Judgment by the agency as
well as a motion for amendment by complainant. Complainant alleged that
the agency discriminated against him when he (6) was assigned excessive
overtime and incurred overtime deductions to his earnings and (7) in
February 2008, was denied a sick leave request. The assigned AJ accepted
the two additional allegations and a deposition was taken on the issues.
As to (1), (3), (6) and (7), the AJ found that complainant's allegations
were de minimis and he failed to establish the agency's actions were based
on discriminatory factors. Specifically, the AJ stated, "[c]omplainant
misconstrues collective bargaining, staffing, and unfairness issues
as discrimination." In its final decision, the agency implemented the
AJ's finding of no discrimination. The instant appeal from complainant
followed.
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").
In the instant case, first, we find that the AJ's issuance of a decision
without a hearing was appropriate as no genuine issues of material fact
exist. Next, we find that complainant failed to show that the alleged
agency actions were based on discriminatory motives. As to the actual
dismissal of (4) and (5) and the dismissal by silence of (2), we find
that the agency properly dismissed the matters pursuant to 29 C.F.R. �
1614.107(a). Accordingly, we AFFIRM the final agency decision.
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
March 6, 2009
__________________
Date
2
0120083929
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083929