01a22073
03-06-2003
Yogendra Desai, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yogendra Desai v. United States Postal Service
01A22073
3/6/03
.
Yogendra Desai,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22073
Agency No. 1J-603-0076-00
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 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 Distribution Clerk at the agency's South Suburban Processing &
Distribution Center facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on March 21, 2000, alleging that
he was discriminated against on the bases of race (Asian), sex (male),
disability (cervical arthritis/radiculopathy), and age (D.O.B. 6/29/39)
when, on December 15, 1999, his pay was reduced from the PS-6 pay level
to the PS-5 pay level.
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. Complainant
initially requested a hearing, but later withdrew his request and opted
for an immediate agency final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination on any bases because he failed to
establish that any similarly situated individuals not in his protected
classes were treated more favorably. Furthermore, the agency found that
it articulated a legitimate, nondiscriminatory reason for its action,
which complainant failed to establish was a pretext for discrimination.
As for his claim of disability discrimination, the agency found
complainant failed to introduce any evidence that he suffers from an
impairment.
Complainant did not submit contentions on appeal, and the agency asks
that we affirm its final decision.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
After a review of the record, the Commission concurs with the agency's
determination that complainant failed to establish a prima facie case
of discrimination on any bases. Indeed, complainant averred that he
believed other individuals outside of his protected classes would have
been treated the same as he was under similar circumstances.
The Commission further finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that the Personnel Manager averred that a review of
records revealed that on February 28, 1991, complainant had been given a
limited duty position as an accommodation following an on-the-job injury.
Complainant was afforded a �special pay status� that permitted him a saved
grade level 6 pay level for his limited duty position. Soon thereafter,
complainant bid on several other positions at pay level 5, and was the
successful bidder on those positions. However, the agency erred in not
updating a code in his records which would have removed him from the
�special pay status� that he had been in while encumbering the limited
duty position. The error was noticed in 1998, and corrected.
Soon thereafter, complainant approached the personnel office and informed
them about the pay change. The Personnel Manager informed complainant
of the error and stated that he had been mistakenly over paid for
several years. The Personnel Manager averred that to retroactively
correct the mistake would have forced complainant to pay back the agency
a substantial amount of money through no fault of his own. Instead,
the Personnel Manager informed complainant that the matter would be
corrected as of 1997, the date of his last bid, so that he would not
have to repay the agency.
In sum, the Manager of Personnel averred that complainant's pay level
changed not because of complainant's membership in a protected class,
but because he chose to bid out of a limited duty position that would
have enabled him to retain a saved grade. The agency's mistake was made
apparent years later when it learned complainant's records had not been
updated to reflect that by biding out of his limited duty position,
he was no longer entitled to the benefits of that position, including
saved grade.
Complainant presented no evidence that would contradict this information,
nor did he provide any evidence that would establish a discriminatory
motive on the agency's part. We note that we have assumed complainant
is an individual with a disability for the purpose of this decision.
Therefore, after a careful review of the record, including 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
3/6/03
Date