0120091397
08-05-2009
Tommy F. Reaves, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tommy F. Reaves,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091397
Hearing No. 531200800344X
Agency No. 4K200002508
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 23, 2009 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. Complainant alleged
that the agency discriminated against him on the basis of reprisal for
prior protected EEO activity when:
1. from July 2007 through December 18, 2007, he was denied overtime,
2. on November 14, 2007, he was not permitted to report to work
before 8:30 AM and could not work overtime,
3. on January 18, 2008, he received a letter stating he was placed
on emergency suspension effective January 8 - 21, 2008;
4. on January 28, 2008, he was physically assaulted by his
supervisor, and it was not properly investigated by his postmaster, and
5. on March 28, 2008, he was placed on emergency suspension in a
non-pay status.1
Following an investigation of the above claims, complainant requested a
hearing, but then withdrew his request. The agency issued a FAD finding
no discrimination, from which complainant appeals.
Complainant claimed for claim 1 that he was told by his postmaster
that he would ensure complainant did not work over eight hours daily
because he refused to "absorb time." The record reflects, however,
that complainant worked 98.67 hours of overtime for the quarter of July
through September 2007, and 61.99 hours of overtime for the quarter of
October through December 2007. He worked less overtime then a number
of co-workers. Complainant's postmaster explained that complainant
was granted overtime when it was warranted, but he was unproductive and
expanded his work time on many occasions because of this.
For claim 2, complainant claimed that in an effort to ensure he did not
receive overtime for November 14, 2007, his postmaster did not allow him
to report to work at 8 AM like other employees, but had him report at
8:30 AM. The record reflects, however, that complainant worked over an
hour of overtime on November 14, 2007. Complainant's postmaster stated
that other employees were not permitted to come in early in November
2007, albeit complainant's reporting time was changed due to his poor
office performance.
Regarding claim 3, complainant was placed on emergency placement in
off-duty status starting January 8, 2007. An unsigned agency letter to
complainant documenting this related the following. Complainant was
informed he was scheduled to leave the office at 11 AM [presumably to
deliver mail] based on his workload, but was found inside the office at
12:10 PM on lunch break by his postmaster. When he asked complainant
to come into his office to discuss his lunch, complainant refused, even
after being given a direct order to do so. Complainant stated he would
not talk without a shop steward, and when the postmaster said it was
not related to discipline, he still refused to come to the postmaster's
office. The letter stated complainant was expanding his work time,
which constituted pilferage.
Other than denying pilferage, complainant did not dispute the points
in the letter. He explained, however, that he left the office with the
postmaster's permission at 11 AM to deliver two express mail packages,
and returned at 11:23 AM to load his vehicle. The postmaster explained
that he placed complainant on emergency suspension because he refused a
direct order. He stated the agency follows Weingarten rights in reacting
to requests for union representation.2
Complainant stated for claim 4 that on January 28, 2008, his supervisor
was seemingly agitated about a parcel complainant did not deliver,
hit him on the side with an open hand, and asked about the parcel.
He stated his postmaster did not take appropriate action. The Postal
Inspection Service investigated the incident, and issued its report on
February 11, 2008. It contains a statement by complainant's supervisor
that he attempted to ask complainant three times about packages next
to him, but he did not answer. The supervisor wrote that he looked up
and realized complainant was wearing headphones, so he tapped him on
the side with the back of his hand to get his attention. According to
postal inspector memorandum of an interview with complainant, he conceded
that the supervisor was just trying to get his attention, but stated he
should not have touched him at all. The postmaster stated that after
he learned of the alleged assault, he conducted an investigation with
a union steward and union president.
Regarding claim 5, the postmaster placed complainant on emergency
off-duty status on March 28, 2008, and instructed him to return to work
the next day. The postmaster was conducting a street supervision
of complainant that day, and gave him a direct order to finger the
mail between deliveries, which he refused to do. In his affidavit the
postmaster cited to agency Handbook M-41, Section 321.5 on fingering mail.
It provides that the individual delivering mail should finger mail between
delivery stops placing it in order before delivery. Complainant conceded
he was ordered twice to finger the mail and did not do so, including
refusing to do so after being asked a third time, but explained he
told his postmaster it was a safety hazard. He stated others were not
asked by the postmaster to finger the mail. The postmaster countered
that he observed no safety hazard, that complainant had flat land to
walk and was not crossing the street. He also countered that he would
instruct any carrier not fingering mail between deliveries to do so.
While complainant discussed safety hazards over the years, the record
does not show he stated what he encountered on March 28, 2008.
On appeal, complainant states that he received a grievance decision in
December 2008 finding that the postmaster did not have just cause to
issue the discipline. He states that he has not been paid for the time
he missed on March 28, 2008.
Complainant has failed to establish reprisal discrimination. He worked
overtime from July 2007 through December 18, 2007, and on November
14, 2007. The postmaster also explained that complainant was provided
overtime when warranted, but he was unproductive and hence expanded
his office and street times. Complainant did not show the postmaster's
explanation was pretext to mask reprisal discrimination. The postmaster
explained that he placed complainant on emergency suspension on January 8,
2008 because he refused to comply with his direct order to accompany him
to his office to discuss his lunch break. While complainant argues that
he was entitled to a union steward, this does not show by a preponderance
of the evidence that the postmaster's action of placing him on emergency
suspension for failing to follow a direct order was pretextual.
Complainant contends that his supervisor touched him in reprisal for
prior EEO activity. The weight of the evidence is that he did so to get
complainant's attention, not to retaliate against complainant. The agency
explained that complainant was placed in off-duty status for part of day
on March 28, 2008 because he refused direct orders to finger the mail, and
complainant failed to show this explanation was pretextual. Complainant
failed to prove pretext or otherwise prove reprisal discrimination.
.
A close reading of the grievance decision complainant submits on appeal
reveals it did not find his placement in off-duty status on March 28,
2008, by the postmaster was not for just cause. To the extent complainant
was improperly not paid for his time away from work on March 28, 2008,
pursuant to a grievance decision or resolution, his redress should be
in the grievance process, not the EEO process.
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 (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
August 5, 2009
__________________
Date
1 Prior to investigating the complaint, the agency dismissed part of it
on procedural grounds. As complainant does not contest this on appeal,
we do not address the matter. In addition, the FAD dismissed claim
1 on procedural grounds, but also ruled there was no discrimination.
Since we are affirming the FAD's finding of no discrimination, we need
not address the procedural dismissal.
2 This is a reference to National Labor Relations Board v. J. Weingarten,
Inc., 420 U.S. 251 (1975). Generally, under Weingarten, bargaining
unit employees have a right to have union representation present
during investigative interviews that an employee believes could lead
to disciplinary action if the employee requests the representation.
The Weingarten right does not apply in regular or routine exchanges such
as giving instruction or needed corrections to work techniques.
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0120091397
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091397