Steve Chabra, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 29, 2007
0120072975 (E.E.O.C. Aug. 29, 2007)

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