01A42069
07-09-2004
Thomas E. Townsend, Sr. Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Thomas E. Townsend, Sr. v. United States Postal Service
01A42069
July 9, 2004
.
Thomas E. Townsend, Sr.
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42069
Agency No. 1H-322-0018-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Time and Attendance Clerk at the agency's Bulk Mail Center,
located in Jacksonville, Florida. Complainant sought EEO counseling
and subsequently filed a formal complaint on July 10, 2001, alleging
that he was discriminated against on the bases of sex (male) and age
(54) when his bid job was abolished on May 8, 2001, and re-posted with
different days off.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that management articulated a legitimate,
nondiscriminatory reason for its action. The agency found that the
off days for the position were changed to accommodate the needs of the
section, and in accordance with article 37 of the National Agreement,
the position was abolished and then re-posted. The agency stated that
the change involved non-scheduled days only, from Saturday/Sunday off
days to Tuesday/Wednesday off days. The agency explained that the change
was necessary to provide the required staffing coverage in the section.
The agency alleged that the most critical day of operation was Saturday.
The agency also alleged that two Tour 2 clerk positions were posted on
May 30, 2001, with a closing date of June 9, 2001. The agency posted
complainant's position with Tuesday/Wednesday off days, and complainant
bid on the position and was the successful bidder.
Complainant makes no new contentions on appeal. The agency request that
we affirm its FAD.
Assuming arguendo, that complainant established a prima facie case
of discrimination based on his sex and age, the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for
its action. Specifically, we find that the position's day off schedule
was changed to accommodate the needs of the agency.
The burden returns to complainant to establish, by a preponderance of the
evidence, that the agency's explanation was a pretext for discrimination.
Upon review, the Commission finds that complainant has failed to meet
that burden. In reaching this conclusion, we are not persuaded by
the evidence of record that management's explanation for its action is
unworthy of belief. While complainant argued that his job of 26 years
was abolished and he believes one factor in management's decision was
to not have to pay overtime, the record shows that complainant was paid
out-of-schedule premium and that the schedule change was based on business
neccesity. Therefore, after a careful review of the record, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
July 9, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1Complainant initially alleged retaliation as a basis of discrimination.
However, he withdrew that basis during the investigative process.