0120082457
09-25-2009
Steve Harrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Steve Harrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120082457
Agency No. 4C-440-0231-07
DECISION
On April 30, 2008, complainant filed an appeal from the agency's March 31,
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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant had not been discriminated against based on his race, color
and previous EEO activity when, among other things, he was not paid for
bereavement leave, his position was abolished and he was reassigned.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Part-Time Regular City Carrier at the agency's Cleveland Post Office,
Station B branch, in Cleveland, Ohio.
On October 5, 2007, complainant filed an EEO complaint alleging that
he was discriminated against and harassed on the bases of race (African
American), color (black), and in reprisal for prior protected EEO activity
arising under Title VII when:
1. on July 27, 2007, management attempted to prevent him from attending
a union steward's meeting;
2. on August 23, 2007, he was not paid for his approved Bereavement
Leave;
3. on August 30, 2007, management attempted to remove/revoke him from
his position as union steward;
4. on August 30, 2007, his bid assignment as Part-Time Regular (PTR)
collector was abolished effective August 31, 2007;
5. on September 1, 2007, he was reassigned to the position of an
unassigned Part-Time Flexible (PTF), under duress, in which he was
denied Holiday Pay on September 3, 2007 (Labor Day) and October 8, 2007
(Columbus Day); and
6. on September 27, 2007, he was made aware that his PTR position had
been abolished on July 27, 2005.1
In a letter of Partial Acceptance and Partial Dismissal dated October 31,
2007, complainant was informed that the agency was dismissing issues 1
and 3 for failure to state a claim under 29 C.F.R. � 1614.107(a)(1).
These issues were found to be more properly raised in another forum,
namely that of the collective bargaining agreement, and any attempt to
process the issues in the EEO process would be a collateral attack on
the proceedings of another forum.2
At the conclusion of the investigation of the remaining issues,
complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). When complainant did not request a hearing within the time
frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that complainant failed to prove that he was subjected to discrimination
as alleged.
In its final decision, the agency found that complainant's complaint
alleged discrete acts and was therefore not properly analyzed under
the standards applicable to harassment cases. It noted that issues 4,
5, and 6 all involved the same incident, that of the abolishment of
complainant's PTR position and his reassignment as a PTF. The agency
found that with respect to the establishment of complainant's prima facie
cases of discrimination, complainant had established his membership in the
protected classes and that he had been subjected to an adverse action.
The agency found, however, that complainant had not shown that he was
treated differently than similarly situated employees outside of his
protected classes. Additionally, the agency found that he had not shown
a causal connection between his prior protected EEO activity and the
current adverse actions. Thus, the agency concluded that complainant
had not established a prima facie case of discrimination based on race,
color or reprisal.
Assuming that he had established his prima facie cases of discrimination,
however, the agency found that its managers had articulated legitimate,
nondiscriminatory reasons for their actions. Regarding issue 2,
complainant's supervisor (MO-1) stated that complainant was told that
he could take Emergency Annual Leave on August 23, 2007, but that he
would have to call back each day to request it again for the following
two days. Complainant, according to the record, did not comply with
these instructions. Complainant did not qualify for Bereavement Leave as
the deceased was not an immediate family member. Regarding issues 4, 5,
and 6, complainant's manager (MO-2) stated that, in August 2007, the PTR
collection position was abolished because she did not believe that it was
still needed. Afterward, she discovered that the position had actually
been abolished, in July 2005, but that complainant continued to perform
the duties. MO-2 stated that complainant, contrary to his statement,
had known of the abolishment in 2005 when it occurred. The agency
concluded that complainant had not shown that its actions were pretext
for discrimination, and had not linked any of those actions to his race,
color or previous EEO activity.
CONTENTIONS ON APPEAL
In his contentions on appeal, complainant's argument focused on the
irregularities he claimed existed between the abolishment of the PTR
position in 2005, and the agency's failure to officially reassign him to
the PTF position sooner than September 2007. He argued that his position
as a union steward had allowed him to remain at the station and continue
performing the PTR duties. He maintained that the agency failed to
officially convert him from a PTR to a PTF as an act of discrimination.
In its response to complainant's appeal, the agency urged the Commission
to affirm its final agency decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
After a thorough review of the record and the contentions on appeal, we
find that the agency engaged in the proper analysis of complainant's
complaint, and properly found that he had not been discriminated
against as alleged. There is no evidence in the record that any of the
agency actions could be linked to complainant's race, color or prior EEO
activity. With respect to issue 2, the agency indicated that complainant
was not allowed to take bereavement leave because the decedent was not
an immediate family member; therefore, complainant was not qualified for
such leave. He was told that he could take emergency annual leave for
August 23rd, but he would then have to call back each day thereafter.
Because he failed to comply with these instructions, he was carried
AWOL for two days. Subsequently, after he filed a grievance, one day
was changed to emergency annual leave and the other day was changed to
a scheduled off-day.
With respect to issues 4 and 5, MO-2 stated that, in August 2007, she
made the decision to abolish complainant's PTR position because there
was no longer a need for it. Therefore, he was reassigned to the PTF
position, which resulted in him losing holiday pay. Complainant offered
no persuasive evidence that MO-2's explanation was unworthy of credence or
belief. This is all the more evident by the fact that the same decision
was made two (2) years before. Complainant maintained that MO-2 wanted
him out of the station, but he did not show it was because of his race,
color or prior EEO activity. Finally, with respect to issue 6, both MO-2
and complainant maintain that they were not aware that complainant's PTR
position had actually been abolished in 2005. Complainant's arguments
on appeal fail to present a convincing case that the agency acted, or
failed to act, for discriminatory reasons. There is simply no evidence
that his race, color or previous EEO activity played any role.
CONCLUSION
Therefore, we find that the agency's conclusion that complainant has not
shown that he was discriminated against based on his race, color or in
reprisal for any previous EEO activity was correct, and we AFFIRM the
agency's finding of no discrimination.
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
_________09/25/09_________
Date
1 A Part-Time Regular works part time hours on a fixed schedule each
week, whereas a Part-Time Flexible works part time hours but each week
the schedule varies as to what days and what hours they have to report.
2 Notwithstanding the agency's assertion that issues 1 and 3 somehow
constitute a collateral attack on another forum's determination, our
review of complainant's appeal indicates that he is not contesting
their dismissal. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9,
1999) provides that the Commission has the discretion to only review
those issues specifically raised on appeal. Accordingly, we will not
address the agency's dismissal of these issues in the decision herein.
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0120082457
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082457