01a54359_r
10-06-2005
Elmus W. Mosby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elmus W. Mosby v. United States Postal Service
01A54359
October 6, 2005
.
Elmus W. Mosby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54359
Agency No. 1K-231-0026-04
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of 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.
Complainant, a Mail Distribution Clerk, PS-05, at the agency's Richmond
Processing and Distribution Center in Richmond, Virginia, filed a formal
complaint on February 13, 2004. Therein, complainant claimed that he
was discriminated against on the basis of age (D.O.B. 11/3/49) when:
he was not authorized Administrative Leave for September 18 and 19,
2003.
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
requested that the agency issue a final decision.
In its FAD, dated April 28, 2005, the agency concluded that complainant
failed to establish a prima facie case of age discrimination, and that
management nonetheless articulated a legitimate, nondiscriminatory
reason for its actions which complainant failed to show was a pretext.
Specifically, the agency presented evidence reflecting that complainant
was not authorized administrative leave because he was not entitled to
it, given his status as a Tour 3 employee. Moreover, the agency found
that complainant failed to present any evidence which demonstrated that
the agency's articulated reasons for its actions were a 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, 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. 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).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. . The record in this case contains an
affidavit from the Plant Manager. Therein, the Plant Manager stated that
because of Hurricane Isabel, many Tour 1 employees were not able to report
to work because the severest impact of the hurricane occurred during their
reporting time. The Plant Manager stated that on September 25, 2003,
he issued an administrative leave policy concerning leave procedures
for September 18 and 19, 2003 in accordance with Employee and Labor
Relations Manuel (ELM) 519.2. Specifically, the Plant Manager stated
that Tour 1 employees who were unable to report to work as scheduled,
could make a request for emergency annual leave (8 hour of administrative
leave) due to the weather; and that their requests would be based on a
case-by-case basis. The Plant Manager stated that Tour 1 employees who
reported to work "during the time frame where administrative leave has
been authorized will receive a future day of administrative leave to be
used prior to January 30, 2004, subject to the normal approval procedures
for annual leave." The Plant Manager stated that Tour 3 employees,
including complainant, were not granted 8 hours of administrative leave,
based on the difference in reporting times. The Plant Manager stated that
although complainant did not make a request for administrative leave,
he was not entitled to administrative leave as provided in ELM 519.2.
Furthermore, the Plant Manager stated that complainant's age was not a
factor for not being authorized administrative leave for September 18
and 19, 2003.
Finally, the Commission determines that complainant has not demonstrated
that the agency's articulated reasons for its actions were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination 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
October 6, 2005
__________________
Date