0120083079
12-12-2008
Charles F. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles F. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083079
Agency No. 1F-908-0020-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 28, 2008, 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.
Complainant claimed that the agency discriminated against him on the bases
of race (Caucasian), sex (male), and in reprisal for prior protected
activity when, since May 24, 2007, and ongoing, he was denied the
opportunity to bid on newly established duty assignments.
Complainant is a Mail Processing Clerk at the Long Beach, California
Processing and Distribution Center. Complainant identified his pay
location as 113. Complainant contends that thirty-three (33) duty
assignments were established around May 24, 2007. Complainant maintains
that the Manual Distribution Clerks (Secondary) in pay location 120 were
assigned by management to either pay location 112 or 113. Complainant
alleges that management's actions have denied him the opportunity to
bid on the 33 newly established duty assignments in pay locations 112
and 113. He also maintains that management officials bypassed the
posting and bidding process for the newly established duty assignments
and that the matter should have been handled according to a Memorandum
of Understanding in effect. Complainant contends that his race and sex
were factors because the majority of the Manual Distribution Clerks were
female and of Asian decent.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Complainant later withdrew
his request and asked for a final agency decision (FAD).
The FAD found no discrimination. Specifically, the FAD found that
assuming arguendo that complainant had established a prima facie case
of discrimination for all bases, the agency articulated legitimate
nondiscriminatory reasons for its actions. Specifically, the agency
determined that there were no newly established duty assignments; and
that no employees either bid or were denied the opportunity to bid on
any position. The agency explained that pay locations were changed for
some of the employees due to administrative reasons. The agency indicated
that nationwide management was changing pay locations for employees for
easier access to pull reports, but a change in pay locations did not
affect employees' duties, hours or schedules. Therefore, there were
no duty assignments created and no reason to put anything up for bid.
The agency found that complainant failed to show that the agency's
articulated reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
We agree that even if we assume arguendo that complainant has established
a prima facie case of discrimination as to all bases, the agency has
articulated legitimate nondiscriminatory reasons for its action and
complainant has failed to show that the stated reasons are pretext
for discrimination. The Commission finds that the record clearly
shows that the agency was following an Area Directive that required the
realignment of pay locations in 2007, and there is no evidence that any
discriminatory motive was involved. Accordingly, the evidence of record
does not establish that discrimination occurred and the agency's FAD is
hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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
12/12/08
__________________
Date
4
0120070844
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036