Paul M. Maestas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 20, 2009
0120080330 (E.E.O.C. May. 20, 2009)

0120080330

05-20-2009

Paul M. Maestas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Paul M. Maestas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120080330

Agency No. 4G870-0059-07

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's September 27, 2007, 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., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Complainant alleged that the agency discriminated against

him on the bases of national origin (Hispanic ), sex (male), and age

(42) when on February 1, 2007, he was notified that he was not entitled

to a yearly clothing allowance in his current bid position.1

The record reveals that complainant a General Expeditor (expeditor),

PS-06, at the Albuquerque, New Mexico Processing and Distribution Center

was notified that his yearly clothing allowance was going to be taken

away because his position did not entitle him to a clothing allowance.

Complainant questioned why other expeditors, female non-Hispanic,

received the allowance and his was being taken away. Upon receipt of this

information, management immediately discontinued the other expeditor's

clothing allowances, unless they had previously had a clothing allowance

on their bid job. Complainant maintained that expeditors should be

granted clothing allowances.

Following an investigation by the agency, complainant failed to

request either a final agency decision (FAD) or a hearing before an

Administrative Judge (AJ) so a FAD was issued. The FAD found that

complainant had not been discriminated against. Specifically, the FAD

found that the agency had articulated a legitimate nondiscriminatory

reason for its action, namely, that expeditor positions did not warrant

a clothing allowance pursuant to an agreement between management and

the union. The agency explained that as soon as it became aware that

several expeditors who were not entitled to clothing allowances had

been inadvertently receiving clothing allowances, all benefits were

immediately discontinued. The agency maintained that complainant's

protected bases had nothing to do with this matter. The agency found

that complainant failed to demonstrate that the agency's reasons were

pretexts for discrimination.

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.

The Commission finds that even if we assume arguendo that complainant

established a prima facie case of discrimination as to all bases, the

agency articulated a legitimate nondiscriminatory reason for its action,

namely, that complainant was not entitled to a clothing allowance in his

bid position as confirmed by his then current Standard Form 50. Further,

the evidence shows that, as complainant pointed out, other expeditors

had been receiving clothing allowances. However, upon learning this, the

agency determined that those benefits were unauthorized and discontinued

those clothing allowances. Complainant failed to show that the agency's

articulated reasons were pretext for prohibited discrimination.

Accordingly, the preponderance of the evidence of record does not

establish that discrimination occurred.

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

05/20/09

__________________

Date

1 This matter was settled at the Step 3 of the grievance procedure.

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0120080330

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013