0120103219
04-18-2012
Orlando S. Giddiens, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Orlando S. Giddiens,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120103219
Agency No. 1B-069-0002-10
DECISION
On July 23, 2010, Complainant filed an appeal from the Agency's July 17, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Building Equipment Mechanic (BEM) at the Agency's work facility in Stamford, Connecticut. On November 19, 2009, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his race (African-American) and color (Black) when on an ongoing basis since September 15, 2009, he has been skipped for overtime. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 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 order pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Final Order at 9. The Agency stated that Complainant failed to establish a prima facie case of race or color discrimination. Id. at 6. The Agency stated that Complainant had Saturdays and Sundays off. Id. at 7. According to the Agency, the three BEM comparisons cited by Complainant differed from Complainant as they did not share the same nonscheduled days. Id. at 6. The Agency noted that among these three BEMs, one had Fridays and Saturdays off, and two had Sundays and Mondays off. Id. Further, the Agency noted that each of these comparisons were available for after tour overtime and Complainant indicated on the overtime decided list that he was not available for after tour overtime.1 Id.
The Agency articulated legitimate, nondiscriminatory reasons for its actions. Id. at 7. According to the Supervisor, Maintenance Operations, he did all the scheduling and Complainant was not skipped for overtime. Id. The supervisor stated that the workload was heaviest on Mondays and Fridays, days Complainant was scheduled to work, and that overtime was generally assigned to individuals who had Mondays and Fridays off. Id. The supervisor stated that during the week he has one less BEM because another BEM who works from Monday to Friday is a union official handling union issues and not his BEM duties. Id. According to the supervisor, it is not feasible to schedule overtime for the weekends because it is not needed then. Id. The Manager, Maintenance stated that Complainant was not skipped over for overtime and that a rotation is applied to scheduling overtime. Id. at 8. The Manager noted that most of the overtime is performed when management is at work, not on the weekends, and that overtime is based on need. Id. According to the official who served as Acting Manager of Maintenance Operations during the relevant time period, Complainant was involved in the overtime rotation when he was needed on a weekend but that in general, unless there was a special project, there already were two BEMs who handled the regular Saturday schedule and one BEM is all that was necessary on Sundays. Id. The Agency determined that Complainant failed to establish that the Agency's explanation for its actions was pretext for discrimination. Id. at 9. Thereafter, Complainant filed the instant appeal.
In response, the Agency asserts that Complainant has not supported his position that all the work could have been rotated with all the BEMs, but that he was skipped on purpose because he is Black.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We shall assume arguendo that Complainant established a prima facie case of race and color discrimination. The Agency stated that Complainant did not receive overtime because his days off were Saturdays and Sundays, days when overtime work was generally not needed, and although Complainant was on the overtime desired list, he indicated that he was not available for after tour overtime. We find that the Agency articulated a legitimate, nondiscriminatory reason for not providing Complainant with overtime opportunities. Complainant maintains that management decided not to utilize BEMs over the weekends for overtime and that this decision affected only him. Complainant stated that he is the only African-American BEM with weekends off. Complainant further stated that there should have been a rotation of overtime for the BEMs and that BEMs with less experience than him received overtime opportunities. However, Complainant has not refuted the Agency's position that overtime work was not needed on the weekends. Further, the supervisor stated that overtime was not based on seniority. Complainant has not proven, by a preponderance of the evidence, that he was denied overtime opportunities based on either his race or color.
CONCLUSION
The Agency's final decision 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:
April 18, 2012
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant stated that he was on the overtime desired list since the beginning of 2009 and consistently after September 5, 2009. Complainant claimed that that he was available to work overtime on his nonscheduled days, before his start time and after his tour. However, the record reflects that Complainant was listed from July 1 - September 30, 2009, as desiring overtime on his nonscheduled days and before his tour, but not after his tour.
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0120103219
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013