0120081166
05-08-2008
Timothy D. Dougherty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy D. Dougherty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081166
Agency No. 4H-320-0054-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 24, 2007 final decision concerning his equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Full-time City Carrier at the agency's Lake Jackson Station in Tallahassee, Florida.
On June 26, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against him on the basis of race (Caucasian) when:
(1) on April 16, 2007 and May 21, 2007, he was denied sick leave for a medical appointment;1
(2) on May 11, 2007, he was issued a Letter of Warning; and
(3) on May 27, 2007, he was not given equal overtime opportunities.
At the conclusion of the investigation, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On December 24, 2007, the agency issued the instant final decision finding no discrimination.
In its final decision, the agency determined that complainant did not establish a prima facie case of race discrimination because complainant did not show that a similarly situated employee, not in complainant's protected class, was treated more favorably under similar circumstances. The agency further determined that even assuming, arguendo, that complainant established a prima facie case, the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not show were a pretext for discrimination.
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). She must generally establish a prima facie case by demonstrating that 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, 575 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency correctly determined that complainant did not present evidence indicating that, under a disparate treatment analysis, the agency's actions were motivated by complainant's race. Moreover, the agency articulated legitimate, nondiscriminatory reasons for its actions, and that complainant did not show that the agency's articulated reasons were a pretext for discrimination.
Regarding claim (1), the agency found that complainant's second-level supervisor (S2) stated that she denied complainant's request for April 21, 2007 because "we had reached full complement for scheduled leave." Specifically, S2 stated that full complement is determined by the Local Memorandum of Understanding (MOU) which "occurs when the maximum number of carriers who can be approved scheduled leave has been reached." S2 stated "in a regular week this is nine carriers, however, in a holiday week this is six carriers." S2 stated that according to the MOU, "if we have not reached full complement, we must approve the leave request."
Regarding complainant's claim that a sick leave request for May 29, 2007 was denied, S2 stated that she denied his leave because "full complement for a holiday week had been reached." S2 stated that during the relevant time, seven employees were already approved to be off on May 29, 2007. S2 stated that she was not sure why seven employees were approved for May 29, 2007 but "this sometimes happens when an employee transfers into a unit with leave approved from his or her prior office. However, all these leave requests were submitted before [complainant's request]. Leave requests are approved on a first come basis, not by race."
Regarding claim (2), complainant's first-level supervisor (S1) stated that on May 10, 2007, he issued complainant a Letter of Warning (LOW) "for failure to follow instructions and time wasting practices as stated in the LOW." Specifically, S1 stated that on April 27, 2007, complainant "left his case and went to another employee's case to talk, which was disruptive. In addition, he then went into overtime after being instructed to be back in the office and off the clock by 1700."
Regarding claim (3), S2 stated that complainant's claim that on May 27, 2007, he was not given equal opportunity opportunities was "not true." S2 stated that on May 27, 2007, which was a Sunday, no carriers worked overtime that day. S2 further stated "I have provided overtime information regarding overtime for pay periods 11 and 12, May 12, 2007, through June 8, 2007, which includes Sunday, May 27, 2007."
Because the agency has proffered legitimate, nondiscriminatory reasons for the identified events, complainant now bears the burden of establishing that the agency's stated reasons were merely a pretext for discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996). Complainant can do this by showing that the agency was motivated by a discriminatory reason. Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). The Commission finds that complainant failed to present evidence to support a finding or create an inference that the agency's articulate reasons its actions are a pretext for discrimination on any alleged basis or in reprisal for complainant's race.
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 because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 8, 2008
__________________
Date
1 In an affidavit in response to the EEO Counselor's request for clarification, complainant claimed that he was denied annual leave for April 21, 2007 and that he was denied sick leave for May 29, 2007. The record further reflects that complainant requested leave for the entire day of April 21, 2007 but was granted only .25 hours. The record reflects that although complainant noted in his affidavit that he requested sick leave on May 28, 2007, the correct date of his request was May 29, 2007.
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0120081166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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