Tyrone D. Hendrix, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionNov 19, 2009
0120092712 (E.E.O.C. Nov. 19, 2009)

0120092712

11-19-2009

Tyrone D. Hendrix, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Tyrone D. Hendrix,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120092712

Hearing No. 420-2008-00238X

Agency No. 1H351001608

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's July 29, 2008, and May 12, 2009 final decisions

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.1

Complainant alleged that the agency discriminated against him on the

bases of race (Black), sex (male), and reprisal for prior protected EEO

activity under Title VII when: 1) he was not allowed to come in two hours

early for overtime; 2) on an unspecified date, he was charged Absence

Without Official Leave (AWOL); (3) on or about November 29, 2007, he was

purportedly harassed and moved from his job assignment and sent home and

(4) on or about December 30, 2007, he was not allowed to work the New

Year's holiday.

In its final decisions, the agency found no discrimination. The agency

determined that management had cumulatively recited legitimate,

nondiscriminatory reasons for its actions. Concerning claim 1, a manager

involved stated that four hours of overtime are available to employees on

a daily basis, in her area, due to absences and mail volume. She further

stated that the office clerk called employees on the overtime-desired

list and asked them to report at 7:00 p.m., if employees could not

report for four hours of overtime starting at 7:00 p.m., then the next

person on the list was called. Further, she explained that calls for

overtime began where the previous day's calls had stopped. However,

in the event that an insufficient number of employees agreed to work

the four hours, then the employees who would take less than 4 hours

were called in for overtime. This manager maintained that two hours

of begin tour overtime was not an option, unless, as she explained,

the overtime desired list was exhausted and there were an insufficient

number of employees that could work the four hours. In addition, the

manager involved stressed that complainant, on several occasions, had

agreed to work four hours of before tour overtime, but on three or four

occasions, he reported for less than four hours, arriving at 8:30 p.m. or

9:00 p.m., or else not at all when report start time was at 7:00 p.m.

Regarding claim 2, the manger involved acknowledged that she charged

complainant with AWOL on December 19, 2007, because he had been tardy

and had not gotten prior authorization.

With respect to claim 3, the agency first noted that complainant failed

to show that he was actually "moved from his job assignment and sent home

on [Friday] November 29, 2007" or the day before. "Complainant did not

provide any specific information as to what happened to him, such as when

he was moved, what assignment he was moved to, and who sent him home."

Concerning his claim of harassment, complainant did not identify any

unwelcome verbal or physical conduct. When asked to explain why this

conduct was harassment, complainant did not provide any additional

information. Similarly, complainant failed to establish that the

harassment complained of was based on his claimed bases. In addition,

complainant did not establish that the harassment had the purpose or

effect of unreasonably interfering with complainant's work performance

and/or creating an intimidating, hostile, or offensive work environment.

Complainant only made a vague reference to harassment and described one

incident in which he was purportedly moved and sent home. The conduct

was not severe in nature. Therefore, considering the totality of the

circumstances, the alleged conduct cannot be considered sufficiently

severe or pervasive. Finally, complainant failed to show that there is

a basis for imputing liability to the employer.

Regarding claim 4, record evidence shows that complainant did not sign

up to work the New Year's holiday. The manger involved stated that

complainant was given the opportunity to work during the holiday, but

did not volunteer to do so.

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").

Complainant proffers no statement on appeal. Thus, complainant has not

produced evidence to show that the agency's explanations are a pretext

for discrimination.

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 decisions

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

November 19, 2009

__________________

Date

1 The agency issued two final decisions in this matter. Complainant had

originally requested a hearing involving claims 3 and 4; however these

claims were remanded to the agency for a final decision after complainant

refused to comply with the Administrative Judge's order.

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0120092712

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092712