Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120123546 (E.E.O.C. Feb. 11, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120123546

Hearing No. 530-2012-00078X

Agency No. 1C-441-0029-11

DECISION
On September 2, 2012, Complainant filed an appeal from the Agency’s July 31, 2012 final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at an Agency work facility in Cleveland, Ohio. On September 21, 2011, Complainant
filed an EEO complaint wherein she claimed that the Agency discriminated against her on the
bases of her race (African-American), sex (female), and color (chocolate) when she was denied
overtime on May 12, 15-19, 22-26, 29-31 and June 1-2, 5 and 7, 2011, and was not provided
any make up opportunities.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did
not object, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on July 27, 2012.

The AJ found that no discrimination occurred. The AJ noted that Complainant claimed that
she received overtime until there was a new Acting Lead Manager. According to
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Complainant, the Acting Lead Manager informed the Manager and the Supervisor not to allow
Complainant to work overtime even though Complainant is the senior employee on the
overtime desired list. Complainant stated that in May 2011, she was on the overtime desired
list in the categories of ten hours and for work outside of her unit.

The AJ noted that Complainant identified five employees who she claimed were granted
overtime in a non-scheme area outside of their bid assignment. This group includes three
African-American males, one African-American female and one Caucasian female.
Complainant claimed that the Acting Lead Manager allowed lighter skinned employees to work
overtime before her. Complainant also claimed that the Acting Lead Manager considered her a
threat because overtime pay could make her pay comparable to a manager’s salary.

According to the Acting Lead Manager, Complainant sought to work overtime past her
scheduled shift on Tour 1. The Acting Lead Manager stated that an employee can work
overtime outside of her section if she is in a unit and on the master list. The Acting Lead
Manager asserted that she approves overtime, but that the Manager and Supervisor are
responsible for authorizing overtime for Complainant. The Manager denied that the Acting
Lead Manager instructed her to reject Complainant’s overtime requests. According to the
Manager, overtime is based on the needs of the service and is assigned by rotation to the
various sections. The AJ observed that the Manager stated that she occasionally told
supervisors not to call Complainant for overtime because clerks on Tour 1 could be moved to
the section later in the morning to clear the operation for the operating window, rather than
have Complainant stay past her completion time.

The AJ found that Complainant failed to establish a prima facie case of discrimination under
each of the alleged bases. According to the AJ, none of the comparisons identified by
Complainant were assigned overtime during the period at issue. The AJ noted that four of the
comparisons are the same race as Complainant and two are the same sex.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency violated the Local Memorandum of
Understanding when she was denied overtime. Complainant maintains that under the
agreement’s terms, if additional help is needed in a non-scheme operation for overtime, a
master list of all sections within the city mailing division will be used. Complainant states that
a selection is supposed to be made from the mailing list beginning with the senior employee
and rotating to the junior by tours. Complainant argues that she was treated differently than
five other employees on the overtime desired list, who had less seniority than her. In support
of her appeal, Complainant submits a statement from a male comparison who states that
Complainant was denied overtime from December 2010 through May 2011 while other junior
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clerks, including himself, received overtime. Another male comparison states Complainant
was denied overtime at times over a three-year period.

ANALYSIS AND FINDINGS
Upon review of the record, we observe that Complainant claims she was denied overtime on
several dates in May and June 2011. Complainant cites five comparisons who she contends
were afforded more favorable treatment than her. They include three African-American
males, one African-American female, and one Caucasian female. We observe that four of the
comparisons were the same race and two the same gender as Complainant. Complainant
claimed that lighter skinned employees were granted overtime before her. We observe that
Complainant received 7.93 hours of overtime during the period at issue. The record indicates
that one African-American female employee was lighter skinned, and she received five hours
of overtime during the period at issue. The white Caucasian female employee received six
hours of overtime on days that Complainant claims that she was denied overtime. The three
male comparisons did not receive overtime during the relevant period. We note that the male
comparisons who submitted statements in support of Complainant’s appeal did not specifically
state that they received overtime on dates that Complainant alleges she was denied overtime.
We observe that despite Complainant’s claims that she was denied overtime opportunities in
favor of the comparisons, she received more overtime than any of the comparisons during the
relevant period. Moreover, we note that Complainant had a different starting time than the
comparisons and thus appears not to have been similarly situated to them. In light of the
evidence in the record, we find that Complainant has failed to establish a prima facie case of
discrimination under each of the alleged bases.

We note that Complainant claims that the Agency violated the Local Memorandum of
Understanding by not granting her overtime. To the degree that this contention has merit, we
note that Complainant has not shown that any lack of adherence is attributable to
discriminatory motivation that would violate the laws enforced by the Commission. Similarly,
any validity to Complainant’s contention that the Acting Lead Manager was denying her
overtime in order to keep her salary from rising to a managerial level does not constitute a
violation of the laws enforced by the Commission.

CONCLUSION
The Agency’s determination in its final order that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:
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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), at 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

(S0610)
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

(Z0610)
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
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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

Date
February 11, 2015