01a60290_r
03-10-2006
Michael Elder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Elder v. United States Postal Service
01A60290
March 10, 2006
.
Michael Elder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60290
Agency No. 1-H-301-0014-03
Hearing No. 110-2004-00014X
DECISION
Complainant, a Motor Vehicle Operator, filed an EEO complaint in which
he claimed that the agency discriminated against him on the bases of
his race (African-American), color (black) and sex (male) when:
1. On September 7-8, complainant performed the duties of Supervisor,
Transportation Networks, but he was not paid higher level pay.
2. On September 17, 2002, complainant was advised that he would no
longer be trained.
3. On September 21, 2002, complainant's supervisor ended complainant's
tour without explanation.
4. On September 28, 2002, complainant was not given the opportunity to
perform 204-B Acting Supervisor duties.
5. On October 5, 2002, complainant was awarded a bid, which was taken
away and given to another driver.
6. On October 16, 2002, complainant requested sixteen hours of Family
and Medical Leave Act (FMLA) dependent care leave, yet complainant was
only granted four hours per day.
The complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, the agency notified complainant
of his right to request either a hearing and decision by an EEOC
Administrative Judge or an immediate final action by the agency.
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). A pre-hearing conference was scheduled for January 13, 2004.
However, complainant failed to appear at the pre-hearing conference.
The AJ issued an Order To Show Cause dated January 13, 2004, ordering
complainant to inform the AJ why the complaint should not be dismissed
for his failure to appear at the January 13, 2004 pre-hearing conference.
On January 23, 2004, the AJ issued an Order Of Dismissal wherein the
hearing request was dismissed pursuant to complainant's failure to appear
at the pre-hearing conference, failure to respond to the January 13, 2004
Show Cause Order, and general failure to prosecute the complaint. The AJ
remanded the complaint to the agency for issuance of a final action.
The agency issued a final action dated March 11, 2004, finding that
no discrimination occurred. The agency determined that complainant
failed to set forth a prima facie case of discrimination with respect
to each of the alleged incidents as complainant failed to prove that he
was treated less favorably than similarly situated employees outside his
protected groups. The agency determined that it articulated legitimate,
nondiscriminatory reasons for its actions. According to the agency,
complainant was properly compensated at a higher level of pay for
performing the duties of Supervisor, Transportation Networks on September
7-8, 2002. Complainant's supervisor stated that complainant would no
longer be trained because his work was deemed unsatisfactory and he was
unable to follow instructions. The agency stated that complainant's tour
was ended because he was observed sleeping while on duty. According to
complainant's supervisor, complainant was not afforded the opportunity
to perform 204-B duties because a trained person was needed. The agency
stated that the temporary bid complainant claimed to have been denied was
split between complainant and another employee with no loss in hours.
Complainant's supervisor stated that complainant received four hours
of dependent care leave rather than sixteen hours because he failed to
provide the required documentation; thus complainant was only given
the hours that he is guaranteed as a part-time flexible employee.
The agency determined that complainant failed to prove that he was
subjected to discrimination.
On appeal, complainant contends that he asked the AJ to reschedule the
pre-hearing conference because he was not represented at the time and
did not have adequate time to prepare for the pre-hearing conference.
The Commission finds that complainant has not articulated a reasonable
explanation as to why he failed to appear at the pre-hearing conference
and why he did not respond to the Order To Show Cause. We find that
the AJ acted within his discretion when he issued the Order Of Dismissal
remanding the complaint to the agency for issuance of a final action.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of discrimination on the bases of race,
color and sex. The Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. We find that
complainant has failed to refute the agency's stated reasons for its
actions. Complainant has not proved by a preponderance of the evidence
that the agency's actions were motivated by discrimination.
The agency's 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
March 10, 2006
__________________
Date