01a43207
05-11-2005
Donald T. Dowd, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald T. Dowd v. United States Postal Service
01A43207
May 11, 2005
.
Donald T. Dowd,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43207
Agency No. 4H-330-0437-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning two consolidated complaints 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Sales, Service,
Distribution Associate at the agency's Opa Locka Post Office in Opa
Locka, Florida. Complainant filed two formal complaints on June 29,
2001 and July 2, 2001, respectively. Therein, complainant claimed that
he was discriminated against in reprisal for prior EEO activity when:
(1) on May 22, 2001, he submitted a Form 1164, Travel Voucher,
for payment and management delayed paying him (Complaint 1, Agency
No. 4H-330-0437-01); and
(2) on May 31, 2001, he became aware that other acting supervisors
received overtime; penalty overtime; and night differential pay, while
he was not compensated from May 2000 through January 2001, under similar
circumstances (Complaint 2, Agency No. 4H-330-0442-01).
The agency consolidated complainant's two complaints; identified them
under Agency No. 4H-330-0437-01; and conducted an investigation. 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. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision on the two consolidated complaints,
finding no discrimination.
In its March 10, 2004 FAD, with respect to Complaints 1 and 2, the agency
determined that complainant failed to establish a prima facie case
of reprisal discrimination. Specifically, the agency concluded that
complainant did not demonstrate that a similarly situated individual
not in his protected class, was treated more favorably under similar
circumstances. The agency found that complainant did not show a causal
connection between his prior protected activity and the challenged action.
Furthermore, the agency concluded that complainant failed to establish,
by a preponderance of the evidence, that the agency's reasons were
pretext for discrimination.
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, she 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complaint 1
The agency articulated a legitimate, non-discriminatory reason for its
employment action, which was not persuasively rebutted by complainant.
The record contains an affidavit from the Manager, Customer Services
(Manager). Therein, the Manager stated that on May 30, 2001, complainant
was reimbursed $452.48 for expenditures while on travel. The record
also contains a copy of Claim for Reimbursement for Expenditures on
Official Business (Form 1164) wherein it showed that on May 30, 2001,
complainant was issued a Postal Money Order number: 03047353402 in the
amount of $452.48.
Complaint 2
The agency articulated a legitimate, non-discriminatory reason for its
employment action, which was not persuasively rebutted by complainant.
Regarding complainant's claim that other acting supervisors received
overtime, penalty overtime and night differential pay while he
was not compensated from May 2000 through January 2001 under similar
circumstances, the Manager stated that he was unaware of other supervisors
during the relevant period, receiving overtime or penalty overtime.
Moreover, in its final decision, the agency noted that complainant failed
to identify specifically any comparatives who were treated more favorably.
In this regard, the agency makes reference to an affidavit prepared by
complainant dated November 20, 2001. In question 5 of the affidavit, the
agency requested that complainant provide the names of agency employees
who received the overtime and night differential; and how they compared
to him. In his response, complainant stated that he was made aware
that �204B's, higher level, other acting Supervisors under similar
circumstances� received overtime and night differential.
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its actions (Complaints 1 and 2) were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination on the
consolidated complaint is AFFIRMED.
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
May 11, 2005
__________________
Date