0120072975
08-29-2007
Steve Chabra, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steve Chabra,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072975
Agency No. 1C-441-0113-05
DECISION
Complainant filed an appeal from the agency's final decision dated May 17,
2007, finding no discrimination with regard to his complaint. In his
complaint, dated December 20, 2005, complainant, a part time flexible
tractor trailer operator at the agency's Cleveland, Ohio, Processing and
Distribution Center, alleged discrimination based on race (Caucasian),
color (white), sex (male), age (DOB: 01/06/42), and in reprisal for
prior EEO activity when: (1) on August 31, 2005, he called and spoke
with Supervisor A requesting 40 hours of leave without pay (LWOP),
however, upon his return to work on September 9, 2005, he was informed
by Supervisor B in a threatening manner that he had to request 40 hours
of annual leave instead or he would be considered absent without leave
(AWOL) for that time; (2) on an unspecified date his vacation request was
initially refused, but after union involvement, it was resolved; and (3)
for unspecified dates, he was not paid for 24 hours of requested leave.
The record indicates that on February 10, 2006, the agency accepted
claims (1) and (3) for investigation, but dismissed claim (2) for failure
to state a claim pursuant to 29 C.F.R. �1614.107(a)(1). Complainant
indicated that although his vacation request was initially denied, it
was approved. The agency stated that on October 11, 2005, complainant
requested 120 hours of annual leave from December 24, 2005 to January
13, 2006. While complainant's request was not initially approved,
Supervisor A subsequently approved the request on December 16, 2005.
On appeal, complainant does not dispute the foregoing statements.
Based on the forgoing, the Commission finds that the agency's dismissal
of claim (2) was proper.
The record indicates that the agency investigated claims (1) and (3).
Upon completion of the investigation of the claims, complainant requested
a hearing before an EEOC Administrative Judge (AJ). However, on April
24, 2007, the AJ denied the request and remanded the case back to the
agency for the issuance of a decision. Specifically, the AJ stated
that on April 9, 2007, complainant was issued an Order to Show Cause
why his complaint should not be dismissed for failure to prosecute.
Therein, complainant was specifically required to submit his response
to the AJ by April 23, 2007, but he failed to do so. On appeal, other
than submitting a copy of his April 6, 2007 letter requesting the AJ to
reschedule a prehearing conference which was scheduled for the same date,
i.e., April 6, 2007, complainant fails to provide any evidence that he
properly and timely responded to the AJ as he was required to do under
the April 9, 2007 Order. Based on the foregoing, the Commission finds
that under the circumstances, the AJ properly denied the requested
hearing and remanded the case back to the agency for its decision.
After a review of the record, the Commission, assuming arguendo that
complainant established a prima facie case of discrimination, finds
that the agency articulated legitimate, nondiscriminatory reasons for
the alleged incidents. With regard to claim (1), Supervisors A and B
stated that neither of them had the authority to approve or disapprove
LWOP requests and denied doing the same during the relevant time period
at issue. Supervisor B also denied threatening complainant as alleged,
rather she merely informed him of his leave options. A manager stated
that she was the only one in the office who can approve or disapprove LWOP
request. Specifically, the manager stated that during the relevant time
period at issue, she disapproved complainant's LWOP request because he had
annual leave in his leave balance. The agency stated that the granting
of LWOP was a matter of administrative discretion. Complainant chose
not to use his annual leave during the relevant time period at issue.
The manager indicated that complainant never discussed with her the
reason for her denial of his LWOP request.
With regard to claim (3), the agency stated that complainant lost 24
hours of annual leave to his annual leave balance effective January 7,
2006, i.e., the carry-over cut-off date. According to the agency's
policy, complainant could carry over only 440 hours of leave and since
he sought to use 24 hours of accumulated annual leave over and above
440 hours after January 7, 2006, he lost these hours. The agency stated
that complainant failed to show that there were other employees who were
treated more favorably, either with regard to the annual leave/LWOP issue
or the loss of accumulated leave. Upon review, the Commission finds that
complainant failed to rebut the agency's legitimate, non-discriminatory
reasons for the alleged actions.
Accordingly, the agency's decision dismissing claim (2) for failure to
state a claim and finding no discrimination regarding claims (1) and
(3) is hereby 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
August 29, 2007
__________________
Date
4
0120072975
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036