0120101459
08-19-2010
Jeffrey M. Shirley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Jeffrey M. Shirley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120101459
Agency No. 4K-280-0075-09
DECISION
Complainant filed a timely appeal from the January 27, 2010 Agency 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Has Complainant shown by a preponderance of the evidence that the Agency subjected him to unlawful discrimination on the basis of reprisal and, therefore, the Agency erred in finding that it had not discriminated against him?
BACKGROUND
Complainant worked for the Agency as a letter carrier at the Gastonia Main Post Office in Gastonia, North Carolina. He filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when it subjected him to harassment and a hostile work environment, including but not limited to, from January 11, 2009 through March 2009, when Complainant was given less overtime. In a partial dismissal of the complaint, the Agency dismissed Complainant's allegation that the Agency discriminated against him on the basis of retaliation by subjecting him to ongoing harassment and a hostile work environment including, but not limited to, from October 2008 through January 10, 2009, when he was given less overtime than other letter carriers.1 In dismissing the latter claim, the Agency concluded that Complainant failed to contact an EEO Counselor until February 25, 2009, or 118 days after October 30, 2008.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested an agency decision.
CONTENTIONS ON APPEAL
Complainant makes essentially the same assertions as he did before the Agency. He asserts that the Agency retaliated against him because he was outspoken about the work environment and harassment at the workplace and had signed petitions presented to management. He urges that the statements of the OIC and Manager A regarding the incident involving the street observation not be credited, noting that his overtime was approved before leaving the office on the day of the street observation and that his Form 3996 for overtime was falsified. He also asserts that he has been unable to obtain overtime information from the Agency.
The Agency argues that Complainant failed to establish a prima facie case of reprisal with regard to the one discrete act included in his hostile work environment claim, i.e., that he was given less overtime than other carriers. The Agency further asserts that management articulated legitimate, nondiscriminatory explanations for the alleged hostile work environment and denied overtime and that Complainant failed to present evidence that management's explanation was pretext for discrimination. The Agency also asserts that the evidence did not support a finding that the complainant had been subjected to retaliatory harassment that was sufficiently severe or pervasive to have altered the terms and conditions of his employment.
ANALYSIS AND FINDINGS
In its decision finding no discrimination, the Agency found that Complainant failed to establish a prima facie case of retaliation, noting that he was given less overtime than other carriers and that he failed to show a causal link between the agency's conduct and Complainant's prior protected activity. The Agency also found that Complainant failed to establish a prima facie case of a hostile work environment. The Agency also determined that Complainant failed to show that he was treated differently regarding overtime, increased scrutiny and intimidation and the street observation for prohibited reasons.
The record reveals that in 2007, Complainant filed a discrimination complaint regarding an overtime issue and that the complaint was closed by the Agency on February 14, 2008. ROI,
Exhibit 2. The Agency identified the previous complaint as Agency No. 4K-280-0115-07. 2
The record contains several affidavits. In his affidavit, Complainant stated that he was followed aggressively by the Officer-in-Charge (OIC) of the Gastonia Main Post Office and Manager A; that he was treated aggressively; that he was refused a street observation report; and that his clock rings/days off were changed after filing the present complaint. ROI, Affidavit A, at pp. 83-146. Complainant also stated that he brought harassment/hostile work environment to the Agency's attention by filing two petitions on these issues. He stated that the OIC was reportedly sent to the Gastonia facility to clean it up. Complainant stated that several employees at the Gastonia facility had filed discrimination complaints.
In a statement which accompanied his affidavit and which concerned the street observation which occurred on March 10, 2009 and the overtime issue, Complainant stated that his Supervisor, instructed him to take as much time as he could on his route and to be back by 5:00 p.m. ROI, Affidavit A, at p. 92. He stated that he completed a Form 3996 for an estimated overtime of 45 minutes. He stated further that when he was submitting his Form 3996 for the day documenting his overtime need for the day, the OIC remarked to him and another letter carrier who had engaged in EEO activity and was a prior union president (Employee A), that the two were leaving early for their routes but were still requesting overtime. Complainant stated further that numerous other carriers had submitted their Forms 3996 and left the building without comment. Id.
Regarding the street observation, Complainant stated also in the statement that when he returned to his route, the OIC and Manager A approached him and questioned him about his whereabouts and he told them that he had been at lunch. Id. He stated further that the two accused him of being off his route for an hour and he denied the accusation. Complainant also stated that he was questioned in a threatening and provoking manner. He stated that the OIC asked him when he would be finished and he told them the same time frame of between 4:30 p.m. to 4:45 p.m. that he had given his Supervisor before beginning his route. Complainant also stated that he was not made aware of any issues concerning his delivery. He stated that later another carrier came to him and told him that the OIC had sent him to take 30 minutes of Complainant's overtime. Complainant stated further that he had been a carrier on the ODL and had never during his career had his overtime taken when he had not requested assistance. He stated that he was held up for approximately 10 to 15 minutes interacting with the OIC and Manager A. Id.
Complainant stated that on the following day, he asked his union shop steward to accompany him to request a copy of the street observation for the following day. Id. He stated further that when he requested the copy from the OIC, the OIC stated that he did not have one for Complainant. He stated further that when he told the OIC that if he were doing things right, he would not get a street observation but if he were doing things wrong, he would get one, the OIC answered "yes." Id.
In another statement, dated April 1, 2009 and which accompanied his affidavit, Complainant stated that his 3996s were regularly scrutinized although some carriers did not complete theirs and those carriers were not questioned. ROI, Affidavit A, at p. 93. He also stated that in October 2008, employees were told that the Agency was looking for employees to fire and when he requested notes of the meeting on November 10, 2008, his request was denied. Complainant also stated that employees were given new rules and policies which could not be obtained in writing when requested; that carriers were forced to lift heavy mail from the bottom of hampers; and that on October 30, 2008, morning breaks were removed after a petition about the work environment and repeated contract violations were filed. Complainant further stated that he became aware in February 2009 that fellow carriers at the Gastonia annex stations were paid "[e]quitability grievance" for 2007 and the Gastonia Main Post Office employees were not so paid. Id.
In the April 1, 2009 statement, Complainant also mentioned a "stand up" meeting. The record contains a signed documentation of an August 16, 2008 "stand up meeting called by the Supervisor and which is attached to Complainant's affidavit. ROI, Affidavit A, at p. 102. The statement signed by eight employees, including Complainant, reflects that the Supervisor had informed employees that if they did not perform their jobs correctly and watch their time, the "new postmaster" (meaning the OIC) would come up and inspect and cut routes. The statement also noted that the Supervisor informed employees that they could not be changing clock rings any more which Complainant stated was in essence admitting that the employees had been changing clock rings; that the new postmaster was sent to clean up Gastonia; that the new postmaster would do anything that he wanted and it would be up to the union to file grievances; and that the employees should "watch out." The August 16, 2008 document also noted that the employees felt the stand up was intimidating and threatening, an admission of altering clock rings to meet numbers and that management would do whatever it wished to create a hostile work environment.
Contained in the record is the affidavit of the OIC. ROI, Affidavit B, at pp. 147-194. In his affidavit, the OIC stated that he did not issue overtime to letter carriers and that overtime was issued by line supervisors. He stated also that he was not directly aware whether Complainant received less overtime than other letter carriers. The OIC stated that the equitability of overtime was monitored by the shop steward from the National Association of Letter Carriers (NALC) as assigned by the Local Union President in the Gastonia Post Office. He stated also that spread sheets were compiled weekly to determine if any equitability overtime issue needed to be addressed prior to the end of the fiscal quarter. The OIC stated further that if there were an equitability issue at the end of the fiscal quarter, the appropriate remedy, set forth in the NALC Joint Contract Administration Manual, provided affected employees the opportunity to make up for the lost overtime opportunities in the next quarter. Id.
The OIC stated that a grievance was filed by the union in April 2009, regarding overtime. Id. He stated that several carriers contended that they were not given overtime opportunities during the preceding three months. The OIC stated further that he agreed to resolve the grievance by giving the carriers the opportunity to make up missed overtime in the next quarter. He noted that Complainant was among six who were to be given the opportunity to make up missed overtime.
In his supplemental affidavit, the OIC stated that he and Manager A were conducting street supervision on several carriers. Id. at p. 185. He stated further that the visited carriers on Routes 1, 15, 16, 17, 18, 19 and that Complainant was the regular carrier on route 17. The OIC stated that they did not complete observation forms but they discussed any issues which they felt needed correction with the carriers at the time of the observation. He stated that he and Manager A were not able to locate Complainant on his route for almost one and a half hours and that letter carriers had only 30 minutes for lunch. The OIC stated that he and Manager A questioned Complainant about his whereabouts and he said that he had been to lunch. He stated also that because he had stopped Complainant from working for several minutes and Complainant was expecting to be back in the office close to 5:00 p.m. that he asked another employee that he came across to go by Complainant's route and take off 30 minutes to ensure that his (OIC's) delay did not force him past 5:00 p.m.
Regarding the street observation, the OIC stated that letter carriers could expect to be supervised anytime during their work days. Id. He also stated that these requirements were outlined in Agency's M-39 and M-41 handbooks. The OIC further stated that there were forms that management could use while observing performance but that there was no requirement that the forms be completed for every performance observation. He stated that Complainant filed a grievance concerning the observation and it was resolved.
The affidavit of Manager A is included in the record. ROI, Affidavit C, at pp. 195-209. He stated that the Acting Postmaster (referencing the OIC) was in his office; that he wanted to do some street observations and he wanted Manager A to accompany him. Manager A stated that they observed five carriers in addition to Complainant. He also stated that they rode around for about an hour and 15 minutes on Complainant's route and could not find him. Manager A stated that as a former carrier he knew how to find a carrier but they could not find Complainant. He stated that the two checked on another carrier on another route and when they returned to Complainant's route, they found him and Complainant told them that he was at lunch.
The record contains the affidavit of the Senior Manager (SM) of Post Office Operations. ROI, Affidavit D, at pp. 210-239. He stated that all 31 letter carriers, including Complainant, signed a petition, dated April 16, 2009. The SM stated that accompanying the petition was a letter which indicated in part that "situation is escalating creating a tense, strained and stressful work atmosphere and affecting employee well being and work performance." He stated further that he and the Manager, Learning Development & Diversity, interviewed the carriers as part of their investigation and assessment in the Gastonia Post Office. The SM stated that all the letter carriers were interviewed. He also stated that Complainant stated that the OIC watched carriers while "casing mail" in the office; micromanaged; and challenged overtime requests after they had been approved by the supervisor.
Regarding the street observation, the SM stated that Complainant stated that the OIC performed a street observation but did not provide a copy of Driving Observation Form 4584 to him. He also stated that Complainant described the OIC's actions as "intimidation" and "bullying." The SM stated that Complainant also complained about the manner in which he was being supervised and also stated that he was being micromanaged. The SM stated that he explained to Complainant that monitoring a carrier's performance was a part of the Postmaster's duties and responsibilities on the street as well as in the office. He also stated that Section 16 of the M-41, City Delivery Carriers Duties and Responsibilities Handbook, stated that carriers could expect to be supervised at all times while in the performance of their duties.
The SM's affidavit reflects that the OIC was asked to take online classes in communications, disciplining employees, managing difficult people, listening and resolving conflicts.
The record contains the affidavit of the Manager, Learning Development & Diversity (MLDD). ROI, Affidavit E, at pp. 240-246. The MLDD stated that complainant and 30 other employees signed a petition requesting an intervention and she and the SM investigated the issues in the petition. She stated further that Complainant was interviewed and that he stated that the OIC micromanaged the office. The MLDD stated that Complainant also mentioned a street observation conducted by the OIC when Complainant was on his route. She stated further that Complainant stated that when he requested a copy of the observation form, he was told that he would only receive it if the observation was bad. The MLDD stated that the OIC was scheduled for communications and interpersonal skills training.
The District Manager's affidavit is contained in the record. ROI, Affidavit F, at pp. 247-260. The DM stated that he had seen two petitions from employees. He stated further that an August 2008 petition was primarily directed at the National Association of Letter Carriers (NALC), the union representing the city carriers and in which the employees alleged that the NALC was failing in its duty of fair representation. The DM stated that the April 2009 petition was directed primarily at the OIC and alleged that he was creating a hostile work environment. He stated that the SM and the MLDD had concluded that there were communication deficiencies and interpersonal skills deficiencies on the part of the OIC.
A declaration completed by the DM is also in the record.3 Id. at 252-254. In his declaration, the DM stated that in February 2007, he received instructions from the Agency's Capital Metro Area that the Mid-Carolinas District needed to reduce overtime expenditures in its various facilities. He stated further that the Mid-Carolinas District was provided with target goals which needed to be met. The DM also stated that as part of the initiative to reduce overtime expenses, the Capital Metro Area finance department compiled lists of high earners for post offices within the Mid-Carolinas District. He stated that "high earners" were employees who were working the most overtime based on end-of-year trend and current use projections. The DM also stated that five employees were identified as "high earners" in each of facilities which had excessive overtime. He identified the Gastonia facility as having been included in the list of facilities. He stated that the names of the high earners were provided to local management at each of the designated facilities along with their designation as high earners. The DM stated further that on March 5, 2007, he instructed his direct reports that while the Mid-Carolinas District had made some progress in achieving the goals set by the Capital Metro Area, it had not succeeded in reducing the average overtime used by the group of "high earners" by 50 percent. He stated that he instructed management not to authorize the high earners to come in on their non-scheduled days in an effort to meet the goal set by the Area Office.
The record also contains an April 16, 2009 letter signed by employees. ROI, Affidavit A, at p. 16. The letter reveals that the employees of the Gastonia Main Post Office stated that they were informing management of issues that remained unaddressed in the Gastonia Main Post Office and, also, "concerns" with the OIC. The letter stated that "this situation" was escalating and creating a tense, strained, and stressful work atmosphere and affecting employee well-being and work performance. The petitioners requested that action be taken to prevent a more serious situation.
The record contains an August 7, 2008 letter signed by employees and addressed to the NALC. ROI, Affidavit A, at p. 99. The letter called on the NALC to stop excessive and daily violations of the bargaining agreement, noting repeated violations of ODL (overtime desired list) and non-ODL carriers, and repeated delay, dramatic reductions and non-payment of grievances. The letter also noted recent and escalating pressure and harassment of carriers who spoke out on such issues.
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must generally establish a prima facie case by demonstrating that the complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). A complainant bears the burden of establishing that the agency's articulated reason is a mere pretext for discrimination. A complainant can do this either directly, by showing that a discriminatory reason more likely motivated the agency, or indirectly, by showing that the agency's proffered explanation is unworthy of credence. Burdine, supra.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining whether a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile work environment, a complainant must show that: (1) complainant belongs to a statutorily protected class; (2) complainant was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on complainant's statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6. Even if harassing conduct produces no tangible employment action, a complainant may assert a Title VII claim if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of a prohibited reason. Harris, 510 U.S. at 22.
A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris, supra.
With respect to harassment claims, the United States Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
In a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas 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) complainant engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant 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).
Adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute reprisal or retaliation. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory reprisal clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.
Initially, the Commission notes that because this matter 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 a de novo review by the Commission. 29 C.F.R. � 1614.405(a). A de novo review requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and to review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and to issue a decision based on the Commission's own assessment of the record and its interpretation of the law.
Also, initially, the Commission notes the Agency's partial dismissal of Complainant's complaint. Complainant does not challenge the partial dismissal on appeal. Although we will not address the propriety of the dismissal, we will consider the dismissed claim as part of background evidence for the accepted claim of discriminatory harassment.
The Commission first addresses the sufficiency of the record before addressing the ultimate issue. Complainant asserts on appeal that he was not given overtime records. Complainant, however, has not identified with any specificity which overtime records he was not given, why the overtime records he had were not sufficient or the reasons why the records allegedly not provided to him would establish retaliatory animus regarding his allegation of denied overtime. The Commission notes that accompanying Complainant's own affidavit are pages of overtime records. ROI, Affidavit A, at pp. 116-127. In addition, the ROI also contains several overtime and employee time and attendance records. ROI, Affidavit B, at pp. 184, 187-189. Further, the Commission finds the record evidence adequate for us to determine whether overtime was discriminatorily denied.
Upon review, the Commission finds that the record does not support a finding that the Agency subjected Complainant to a discriminatorily hostile work environment or retaliated against him because he had a previously filed discrimination complaint. The allegedly hostile incidents, some of which were little more than generalized assertions, do not rise to the level of a discriminatorily hostile work environment.
We also conclude that Complainant has failed to show that the Agency's legitimate, nondiscriminatory reasons for any of the alleged discriminatory actions were pretextual. His mere assertions, without more, are not sufficient to show that the Agency's reasons were pretextual.
We find that the petitions complainant and other employees signed were aimed at addressing an allegedly hostile work environment but not a discriminatorily hostile environment. What the record suggests is that the OIC was a new manager at the Gastonia facility and he was managing operations differently than that to which the employees may have been accustomed. Complainant and other employees appear to have concerns about the OIC. Not all conduct that makes an employee unhappy is discriminatory harassment.4 Discrimination statutes prohibit only harassing behavior directed at an employee because of a protected bases. Further, even though employees raised concerns about the OIC, the evidence indicates that Complainant's, and employee dissatisfaction were related to the OIC's interpersonal skills and management style and their discontent with change and not evidence of a discriminatorily hostile workplace or a discriminatorily hostile OIC.
Regarding the "clock rings," change of days off, and overtime in general, conduct that complainant alleged was retaliatory and part of his claim of a hostile work environment, Complainant has done little more than make assertions and has not clearly identified when these alleged incidents occurred. Regarding the street observation and the alleged reduction of Complainant's overtime on the date of the street observation, the Agency has provided legitimate, nondiscriminatory reasons for its actions and Complainant has not shown that the Agency's reasons were pretextual. Complainant provided one incident of a street observation. The record discloses that street observations were a part of managing letter carriers. In addition, Complainant was not the only employee who was observed. There were other employees who were observed besides Complainant and Employee A, an employee Complainant identified as having been involved in prior EEO activity. Also regarding the documentation for the street observation, we find that even if street documentation were required, the record does not establish that the OIC's failure to document the street observation by completing a form was motivated by prohibited discrimination. See Page v. Bolger, 645 F.2d 227 (4thCir.1981), cert. denied, 454 U.S. 892(1981), Kirk v. United States Postal Service, EEOC Appeal No. 01924252 (October 19, 1992) (failure to follow established procedures in the selection process, by itself, is not sufficient to support an inference of pretext). Further, an agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Regarding the overtime issue connected to the March 10, 2009 street observation, the OIC indicated why Complainant's overtime was adjusted and the record is not entirely clear that Complainant lost overtime on that date and even if he did, he has not shown retaliatory animus. Regarding overtime in general, Agency management and overtime records provide an explanation regarding why overtime was being reduced and how it was reviewed and monitored regularly. Agency management and overtime records also reveal that adjustments were made when overtime was not distributed evenly. It is not enough for Complainant to simply disagree with the agency's actions. Where overtime was not provided equally, it was adjusted for Complainant and others who had not engaged in previous EEO activity.
As noted earlier, Complainant urges that statements made by management be discredited. Even assuming that Agency officials lied, as complainant contends, Complainant has failed to link the lie or its creation to prohibited discrimination. It is not sufficient "to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination. St. Mary Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
At all times the ultimate burden of persuasion remains with complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to do so.
CONCLUSION
The Agency's decision finding no discrimination 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:
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 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
August 19, 2010
__________________
Date
1 Partial Acceptance/Partial Dismissal of Formal EEO Complaint, Report of Investigation, at 78 (June 29, 2009).
2 The complaint came before the Commission as Jeffery Shirley v. United States Postal Service, EEOC App. No. 0120081976 (Sept. 15, 2009)( no discrimination found where Complainant alleged that he was not permitted to work his non-scheduled days continuing from March 2007).
3 It appears that this declaration was prepared for Complainant's prior discrimination complaint in Agency No. 4K-280-0115-07. See footnote 2, supra.
4 The Commission notes that to the extent that complainant is alleging dissatisfaction with the union's inaction or violations of terms of the collective bargaining agreement, the Commission has no jurisdiction over such matters.
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0120101459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101459