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