Edward Arayaes, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionApr 6, 2004
01A32387 (E.E.O.C. Apr. 6, 2004)

01A32387

04-06-2004

Edward Arayaes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.


Edward Arayaes v. United States Postal Service

01A32387

April 6, 2004

.

Edward Arayaes,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 01A32387

Agency No. 1E-891-0014-01

Hearing No. 340-A2-3328X

DECISION

Complainant timely initiated an appeal from a final agency decision

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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted for the Commission's de novo review pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS

the agency's final decision.<1>

The record reveals that during the relevant time, complainant was

employed as a Distribution Clerk at the agency's Las Vegas Processing &

Distribution (P&D) Center in Nevada. Complainant, who served as a union

steward and EEO representative for several years, sought EEO counseling

and subsequently filed a formal complaint on March 17, 2001, alleging

that he was discriminated against on the bases of race (Caucasian), age,

and in reprisal for prior EEO activity when he was verbally attacked by

his supervisor and, ongoing from January 18, 2001, was denied overtime.

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

originally requested a hearing and it appears from complainant's

appeal statement that he had several hearing requests pending before

the Commission's Los Angeles District Office. On December 30, 2002,

an EEOC Administrative Judge denied his December 15, 2002 request to

postpone the hearing and restated that it was scheduled for January

9, 2003. In its final decision, the agency states that in response to

the Administrative Judge's decision, complainant withdrew his hearing

request, and on January 6, 2003, the Administrative Judge remanded the

case to the agency for the issuance of a final decision.

In its final decision, the agency concluded that complainant failed to

establish a prima facie case of discrimination on any of his alleged

bases. Assuming arguendo that he did establish a prima facie case of

discrimination, the agency stated that complainant was not denied overtime

and the only time he did not work overtime was when he was asked to be

excused. The agency also found that there was no evidence to support

complainant's claim that he was verbally attacked by his supervisor.

On appeal, complainant argues that the Commission should consider

the motion for summary judgment in his favor that he submitted to the

Administrative Judge and that the agency failed to address claims of

discrimination raised in complainant's other complaints.<2> Complainant

requests that all of his complaints be remanded for investigation,

redress, and the scheduling of a hearing. Complainant does not refute

the agency's statement that he withdrew his hearing request.

Upon review of the record, we conclude that complainant has failed to

prove, by a preponderance of the evidence, that the incidents alleged in

the instant complaint actually occurred, and assuming arguendo that they

did occur, that they were motivated by unlawful discriminatory animus.

Accordingly, the Commission AFFIRMS the final agency decision.

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

April 6, 2004

__________________

Date

1 This decision is being issued concurrently with the Commission's

decision in Martin v. United States Postal Service, EEOC Appeal

No. 01A32388.

2 In the motion for summary judgment, complainant's argument concerns the

agency's decision to use Scheme Aid Machines (SAMs) at the P&D Center.

Complainant argues, inter alia, that management specifically used the

SAMs to deprive complainant of overtime work and that this decision

disparately impacted employees in complainant's protected classes.

Complainant attached the front page caption of an arbitrator's decision

that suggests management violated a union agreement when it used

non-scheme qualified �ODL� employees, assisted by SAMs, on straight time,

in order to avoid penalty overtime for scheme-qualified �ODL� employees.