Nick N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142852 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142852 Hearing No. 490-2013-00146X Agency No. 1C-378-0003-13 DECISION Complainant filed an appeal from the Agency’s July 2, 2014 final order concerning his 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Mail Processing Clerk at the Agency’s Processing and Distribution Center in Knoxville, Tennessee. On January 8, 2013, Complainant filed an EEO complaint in which he alleged that the Manager of Distribution Operations (MDO) retaliated against him for prior protected EEO activity by denying him the opportunity to work overtime on October 22, 2012. Complainant and two other employees (Comparators A and B) were on the overtime desired list (ODL) from October through December 2012. There were three categories of overtime listed on the ODL: before tour; after tour; and off-day. Complainant and Comparator B 1This 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. 0120142852 2 checked off all three categories while Comparator A checked only before tour and after tour. Investigative Report (IR) 102. Complainant averred that the MDO told him that he could not authorize overtime for him on October 22, 2012, and that the decision to do so would be left to the Supervisor of Distribution of Operations (SDO). He also averred that the MDO authorized Comparator A and Comparator B later that same day. IR 40-41. The MDO denied that he told Complainant that overtime could not be authorized for him. He averred that his response to Complainant was that he did not know if he could authorize overtime and that Complainant should check with him when the SDO came in. IR 57. The SDO testified that overtime was based on mail volume, that Complainant had worked overtime when the mail volume had increased to the point that overtime was needed, and that because Complainant’s tour ended earlier than the tours of the Comparators, it was possible that the mail volume was not sufficient to warrant overtime when Complainant’s regular shift ended but had increased enough to justify overtime by the time that the Comparators’ shifts ended. IR 64-66. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested a hearing, the AJ assigned to the case granted the Agency’s February 3, 2014, motion for summary judgment over his objections and issued a decision on June 23, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to retaliation as alleged. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The Commission cannot second-guess an Agency’s decisions regarding the granting or withholding of employment privileges such as overtime unless there is evidence of a retaliatory motivation on the part of the officials responsible for such decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). When asked by the investigator why he believed that his previous EEO activity was a motivating factor in the MDO’s alleged decision to deny him overtime, Complainant reiterated his belief that the MDO was told by upper management not to authorize him any more overtime. IR 40. We must point out that the statutes we enforce are not a fairness code. 0120142852 3 They cannot prevent an employer from granting or withholding privileges of employment such as overtime unless that employer’s decisions are rooted in a proscribed motivation such as one’s previous participation in the EEO process. And on this crucial issue, Complainant did not present evidence of any of the indicators of pretext listed above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by the MDO, or which call the MDO’s veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the MDO’s motivation in connection with his claim regarding denial of overtime. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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). 0120142852 4 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 January 6, 2016 Date Copy with citationCopy as parenthetical citation