0120090872
05-20-2009
Robert C. Andrade, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert C. Andrade,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090872
Agency No. 1B-029-0009-08
Hearing No. 520-2008-00517X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 14, 2008 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.
Complainant, a full time Mail Processing Clerk, PS-5 at the Providence,
Rhode Island, Processing and Distribution Center (P&DC) filed an EEO
complaint. Therein, complainant claimed that the agency discriminated
against him on the basis of sex (male) when on February 26, 2008, it
denied him a change of schedule to Tour 2.
Following an investigation by the agency, complainant was given the choice
of either a final agency decision (FAD) or a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The
AJ issued a decision without a hearing finding no discrimination.
Complainant testified that his tour of duty on February 26, 2008, was
Tour 3. He alleged that he was discriminated against based on his sex.
Specifically, complainant claimed that a female full time General Clerk,
PS-5, at the Providence, Rhode Island, P&DC, who is a single mother,
was granted a change of schedule to work days for a period of 15 months
due to child care needs; yet he, a single father, was denied a change
of schedule to work days for a period of one month for child needs.
The record indicates that this female employee had applied for
and received several details within an 18-month period prior to
complainant's schedule change denial, but she made no requests for
changes in schedule. On February 26, complainant requested a change of
schedule to days with work hours of 07:00-15:50. His normal schedule was
15:50-24:00. This was a change from Tour 3 to 2. Complainant submitted
the request to the Manager, Distribution Operations (MDO) on Tour 3,
who had approved his previous requests for schedule changes.
The MDO stated that requests for temporary changes of schedule are
submitted on PS Form 3189 and this form is first signed by the Union
and then submitted to the MDO. He stated that his authority to grant
changes of schedules only covered his tour (Tour 3) and if an employee
needed a change of schedule out of his normal tour, the Lead MDO would
be consulted. As complainant's request was for a schedule change that
would place him on Tour 2 his request was considered by the Lead MDO
who disapproved the request due to operational needs.
The record indicates that the agency offered complainant several other
options to tend to his childcare needs, which included a custodial
position, a Letter Carrier position and to work the hours of 21:00-5:50,
which complainant declined. The record further indicates that from
September 20, 2006 to October 2, 2007, complainant submitted six requests
for changes in schedule for childcare needs and five of these requests
were approved and only was denied.
The Commissions regulations allow an AJ to issue a decision without
hearing when he or she finds that there is no genuine issue of material
fact.29 C.F.R � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 245 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id at 255. 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, 322-323 (1986). The AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition. See
Petty v. Department of Defense, EEOC Appeal No.0120024206 July 11, 2003).
The AJ found that complainant failed to establish a prima facie of
disparate treatment based on sex. Specifically, the AJ found that
complainant has established that he is a member of a protected group
with respect to his sex. However, complainant had not identified
any similarly situated individual outside his protected group
treated more favorably than he; and that the cited comparator was not
similarly situated as complainant as he is a Mail Processing Clerk,
occupational code 2315-0663, pay location 305. The female employee
was a General Clerk, occupational code 2340-001xx, pay location 304.
The female employee had made no requests for schedule changes during
the time period in question. The AJ found that though she had applied
for and was placed on several details within the 18-month period prior
to complainant's schedule change denial, she made no requests changes
in schedule during that time period.
Moreover, the AJ found that the agency articulated legitimate
non-discriminatory reason for its denial for complainant's most recent
schedule change because there was no work available for complainant
on Tour 2 as automation at the facility decreased the need for clerks
(due to volume loss, more accurate volume figures, and increased machine
productivity). The AJ also found that complainant has failed to prove
the agency's articulated reasons for its actions were a pretext for
discrimination.
On appeal, complainant argues that the AJ erred in finding that
complainant did not establish a prima facie case of discrimination.
Specifically, complainant argues that the comparative female referenced
above are "both members of the Clerk craft and are PS-05." Complainant
argues further that the AJ used "artificial distinctions of pay location
and operational codes to support her conclusion." Complainant further
argues that by using the "detail methodology" to effectuate a change
of schedule, without expressly calling it a change a schedule, allows
agency management to provide preferential treatment and evade its
responsibility to treat employees equally. Despite these arguments,
the Commission determines that the record nonetheless supports the AJ's
assessment that complainant did not establish a prima facie case of
discrimination; and that even if he did so, the agency articulated the
above referenced legitimate non-discriminatory reason for its action,
which was not pretextual.
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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence 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
May 20, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090872