0120090358
02-06-2009
Norman A. Breece, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Norman A. Breece,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120090358
Agency No. 1E891002208
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 18, 2008 final decision 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. Complainant alleged
that the agency discriminated against him on the basis of reprisal (for
prior protected EEO activity) when, on March 24, 2008, his annual leave
request was denied.
Complainant asserts that on February 26, 2008, he filled out PS Form
3971 requesting 64 hours of annual leave to attend the 2008 American
Postal Workers Union (APWU) National Convention.
Complainant states that he requested leave for August 12, 2008 through
August 22, 2008 and that such leave request was denied on March 24, 2008.
Management officials testified that complainant's annual leave request
was denied because the 2008 Annual Leave Board was full for the time
requested. Complainant's supervisor (S1) informed him that he would
be put on the waiting list and that if anyone cancelled their vacation
leave for those dates his leave request would be granted. S1 also
advised complainant that even if there were no cancellation, there was
a possibility that management would be able to grant complainant's leave
request, but that S1 would not know for sure until it got closer to the
week in question.
The record reflects that during the last local negotiations, the Union
negotiated three "choice vacation" slots for each shift for each week
for a total of six slots. Employees are placed in those slots based on
their choices by seniority and that when slots are filled employees are
placed on a waiting list. Employees submit vacation bidding forms with
their choices between November 7th and November 21st annually, which
is the initial round of bidding, and that the results are posted by
December 1st. In addition, employees submit another vacation form with
their choices between December 7th and December 21st for the second round.
The results of this bidding are posted before January 1st. The record
further reflects that the dates for the APWU National Convention fell
during the choice vacation period schedule and that complainant had
submitted his annual leave request to attend this convention on February
26, 2007, after determination of the choice vacation schedule.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision,
because the preponderance of the evidence of record does not establish
that discrimination occurred as alleged.
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
February 6, 2009
Date
Date
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0120090358
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090358