Ex Kano Sams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionJun 14, 2007
0120071018 (E.E.O.C. Jun. 14, 2007)

0120071018

06-14-2007

Ex Kano Sams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Ex Kano Sams,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120071018

Agency No. 4F-900-0164-05

DECISION

On December 11, 2006, complainant filed an appeal from the agency's

November 6, 2006, final decision concerning his equal employment

opportunity (EEO) complaint alleging 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 deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final decision.

On July 12, 2005, complainant filed an EEO complaint alleging that he

was discriminated against on the basis of reprisal for prior protected

EEO activity under Title VII of the Civil Rights Act of 1964 when: (1)

on March 9 and 30, April 6, May 3 and June 22, 2005, his Supervisor (S1)

required that he perform the additional task of delivering Express mail

items and failed to compensate him appropriately; and (2) on March 4,

2005, S1 required him to work overtime although he was not on the overtime

desired list.

The record establishes that complainant was employed as a Full-time

City Carrier at the agency's Village Station Post Office in Los Angeles,

California ("facility"). Complainant alleged that S1 and the facility's

Manager of Customer Services (MCS) retaliated against him for his prior

EEO activity, which occurred in 1999. Believing he was the victim

of discrimination, complainant sought EEO counseling and filed the

aforementioned formal complaint of discrimination.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ).1 When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b) concluding that complainant failed to prove that he was

subjected to discrimination as alleged.

The final decision found that complainant failed to establish a

prima facie case of retaliation, as his most recent EEO activity

occurred over five (5) years prior to the earliest incident alleged by

complainant. The final decision conceded that S1 and the MCS were aware

of complainant's prior EEO activity, but found that the more than five

(5) year period between the EEO activity and the alleged discriminatory

conduct was insufficient to establish the required causal connection

for retaliation. In addition, the final decision found that management

articulated legitimate, nondiscriminatory reasons for its actions which

were not pretextual in nature. The final decision found that complainant

was not asked to perform additional tasks, as delivering Express mail

was part of his duties. The final decision noted that the standard

job description of City Carriers includes delivering parcel post and

Express mail. Investigative Report (IR) at Exhibit 2; Affidavit B.

The final decision noted that S1 stated: (1) if a Carrier has Express

mail assigned to their route, they are expected to deliver it before

12:00 P.M.; and (2) when Express mail is delivered within the Carrier's

tour of duty, the Carrier is not entitled to additional compensation.

Regarding the dates at issue, S1 stated that complainant was not assigned

additional tasks that required additional compensation as the delivery

of Express Mail was part of each Carrier's required duties.

The final decision also stated that, on March 4, 2005, complainant was

required to deliver mail during his tour of duty, with no overtime.

IR at Exhibit 8. S1 stated that complainant may have had a "drive out

agreement" at one time which would have compensated him for mileage

when he used his own vehicle. However, S1 noted that, on the date at

issue, complainant was driving a postal vehicle and was not entitled

to additional compensation. The final decision noted S1's statement

that the mail which complainant was required to deliver was either

regular or Express mail, which was to be delivered during his regular

tour of duty. In addition, the final decision found that the agency's

area Manager of Labor Relations stated that regardless of whether a

Carrier has a drive out agreement, complainant would only be eligible

for overtime pay if he went over eight (8) hours per day or 40 hours

per week. IF at Affidavit D and Exhibit 13. The record indicated that

complainant was not required to work overtime, but was asked to return to

the facility to deliver additional mail. Final Decision at 5. Finally,

the agency's decision found that complainant failed to proffer evidence

which established that its articulated reasons for its actions were

pretextual in nature. In so finding, the final decision noted that,

according to S1, the comparison employees cited by complainant would

only have been paid overtime if they worked over eight (8) hours per day

or worked on a scheduled day off. IF at Affidavit B and Exhibits 8-9.

Complainant has submitted no arguments in support of his appeal.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently, he

or she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment. Whitmire

v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,

2000).

The Commission agrees that complainant failed to establish a prima facie

case of reprisal, as the more than five (5) year period between his

prior EEO activity and the actions as alleged in the instant complaint

were insufficient to demonstrate the required nexus. Notwithstanding,

we find that assuming, arguendo, that complainant established a prima

facie case of reprisal, his claim would still fail because the agency

articulated legitimate nondiscriminatory reasons for its action(s),

namely, that: (1) delivering Express mail was part of complainant's tour

of duty on the dates at issue, and he was not entitled to additional

compensation as he was not assigned additional tasks; and (2) the time

and attendance records for March 4, 2005 indicated that complainant

worked eight (8) hours with no overtime. We find that complainant has

presented no evidence showing that the agency's reasons were pretext for

discrimination. The Commission is mindful of complainant's contention

that other facility employees received overtime pay while he did not.

Nonetheless, we find that the record does not show that any similarly

situated employees were treated more favorably. In fact, the agency's

documentation notes that agency employees would only have been paid

overtime if they worked over eight (8) hours on the day they worked or

worked on a scheduled day off. However, on the date at issue, there is

no evidence that complainant worked over eight (8) hours or worked on

a scheduled day off. IF at Affidavit B and Exhibits 8 and 9.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final 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

______6/14/07____________

Date

1 The record indicates that complainant's claim was initially dismissed

by the agency for failure to state a claim on October 4, 2005. On April

25, 2006, the Office of Federal Operations (OFO) remanded the complaint

to the agency for further processing. Complainant disagreed with the

accepted issues in his complaint as defined by the agency and OFO, but

the agency rejected complainant's protest as the issues raised were the

same as those alleged in his formal complaint.

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0120071018

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071018