0120080653
10-28-2009
Randy J. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Randy J. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080653
Hearing No. 510-2007-00273X
Agency No. 4H-335-0015-07
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination Complainant alleges that he was
discriminated on the bases of race (African-American) and in reprisal
for prior protected EEO activity when:
1. Since October 3, 2006, complainant was denied overtime.
2. On October 6, 2006, complainant was issued a Letter of Warning (LOW).
3. On October 25, 2006, complainant was issued a Notice of Removal.
On August 28, 2007, an EEOC Administrative Judge (AJ) dismissed
complainant's hearing request. The AJ noted that complainant withdrew
his request for a hearing and requested a final agency decision without
a hearing. On appeal, complainant does not challenge the AJ's dismissal
of the hearing request and we find no reason to alter the AJ's action.
On October 24, 2007, the agency issued a decision finding no
discrimination. Complainant now appeals from that decision.
Upon review, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, the
Manager of Customer Service (MOC) stated that complainant was not denied
overtime opportunities and that overtime was being reduced overall.
The MOC asserted that complainant was on the overtime desired list for
the quarter of 2006 beginning October 1 and ending December 31, 2006,
but he was not present to sign the list beginning January 1, 2007.
Additionally, in an attachment to his affidavit, the Supervisor of
Customer Service (SOC) noted that complainant worked approximately 32.32
hours overtime during the relevant time period. Moreover, the agency
noted that complainant was given overtime opportunities for the first
quarter of 2006 which he turned down due to his desire to go home or
attend medical appointments.
In terms of claim 2, the SOC stated that complainant was issued the LOW
for Unsatisfactory Performance-Failure to Follow Instructions. The SOC
asserted that, on September 22, 2006, complainant took a .49 unit lunch
break; and on September 25, 2006, complainant took a .46 unit lunch break.
The SOC said that complainant had been previously instructed that lunch
breaks were to be 30-minutes long (equivalent to .50 units).
With respect to claim 3, the SOC stated that following an investigative
interview he decided to issue complainant a Notice of Removal for
Improper Conduct because complainant's intent was to deceive. The SOC
asserted that, on September 27, 2006, he was informed by Employee A
that complainant had approached Employee B to mail a package. The SOC
said that, when Employee B informed complainant that due to the size of
the package it would require a surcharge, complainant did not mail the
package with Employee B. The SOC claimed that Employee B reported that
complainant took the package to his store window and mailed the package
himself. The SOC argued that the package had a meter strip for $17.70
initiated by clerk 02, complainant's identification. The SOC stated that,
when the measurements were put into the POS machine, it was determined the
amount charged should have been $83.99. The MOC concurred with the SOC's
decision to issue complainant a Notice of Removal for Improper Conduct.
The record contains a written statement dated September 27, 2006,
from Employee B stating that when complainant brought a parcel to his
window he told complainant there would be a surcharge of $60.00 for
being oversized. Employee B asserted that complainant took the parcel
and sent it himself and put only $17.70 of postage on the parcel. In
another written statement dated September 27, 2006, Employee A said that
she was advised of an oversized parcel in the outgoing mail, processed
by clerk 02 for himself. Employee A stated that the parcel was over
108 inches and needed the oversized surcharge, as well as, to be sent
parcel post. Likewise, Employee C provided a written statement in which
he stated that he was called to the front office on September 27, 2006,
to observe an oversized parcel charged incorrectly, due to the fact the
oversized rate was not charged.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Moreover, complainant
has failed to show, by a preponderance of the evidence, that he was
discriminated against on the bases of race or reprisal.1
The agency's decision finding no discrimination is AFFIRMED.
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
October 28, 2009
__________________
Date
1 In his affidavit complainant contends that Employee B made racial slurs
against him in the workplace; however, we note the alleged slurs were
not made in connection to the issues involved in the present complaint.
Complainant was advised to contact the District EEO Office regarding
his claim that Employee B called him racial slurs.
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0120080653
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013