05A11090
12-18-2001
Clement J. Haberman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Clement J. Haberman v. United States Postal Service
05A11090
December 18, 2001
.
Clement J. Haberman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 05A11090
Appeal No. 01984805
Agency No. 4J640114996
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Clement
J. Haberman v. United States Postal Service, EEOC Appeal No. 01984805
(August 2, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his complaint of unlawful 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 alleged, in his complaint,
that he was discriminated against on the bases of race (White), sex
(male), age (over 40), and reprisal (prior protected activity), when:
(1) his starting time was changed from 5:00 a.m. to 7:00 a.m.; and (2)
he was denied Postal Source Data System (PSDS) training.
The record reveals that during the relevant time, complainant was
employed as a Time and Attendance Clerk, PS-05, at the agency's Kansas
City Main Post Office, Kansas City, Missouri. Believing he was a victim
of discrimination, complainant subsequently filed a formal complaint on
August 29, 1996. Complainant requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race, sex, age and/or retaliation discrimination,
because complainant failed to identify any comparison employees who
were treated more favorably. The Responsible Management Official
(RMO) also stated that due to the installation of a new system called
Electronic Timekeeping Clock - Local Area Network (ETC-LAN), it was no
longer necessary for complainant to begin work at 5:00 a.m. In addition,
the RMO indicated that PSDS was an outdated system, and that the agency
had been in the process of changing to the ETC-LAN and another Time
and Attendance Collection System (TACS). Thus, according to the RMO,
training for PSDS would not be offered to anyone unless they received
a formal bid into the section. The RMO additionally indicated that
complainant never applied for a permanent position in PSDS.
On appeal, complainant contended that he established a prima facie case
of retaliation and age discrimination. Complainant also challenged the
agency to present evidence supporting its claims and reiterated various
arguments in support of his discrimination allegations.
The Commission found that complainant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In addition, the Commission found
that complainant failed to sufficiently show that the agency's actions
were unreasonable in terms of business judgment, and thus, without more,
complainant's argument that the agency's articulated reasons for its
actions were a pretext for discrimination is unproven.
On reconsideration, the complainant argues that people were trained
in PSDS without a formal bid into the PSDS section, and that people
outside the ETC section received ETC training. Complainant further
argues that the agency's actions have been unreasonable in terms of
business judgment. Complainant also argues, as evidence of pretext,
that he has been daily harassed.
ANALYSIS AND FINDINGS
Although complainant argues that a start time of 5:00 a.m. would be
beneficial to the agency, complainant does not explain how changing his
starting time from 5:00 a.m. to 7:00 a.m. was unlawful. Thus, although
complainant attempts to suggest that there was work he could have done
at 5:00 a.m., complainant has not shown any evidence of how management
unlawfully abused its discretion in directing that complainant's starting
time begin at 7:00 a.m., e.g., a valid comparator who had a start time
at 5:00 a.m.
Although complainant, a Time and Attendance Clerk, argues that he was
unlawfully denied PSDS training, there is no indication any other Time
and Attendance Clerk, who was outside the PSDS section, received PSDS
training, as requested by complainant. Therefore, complainant's argument
that a Data Supply Clerk, a Mail Processor, and others received PSDS
training is not relevant. Complainant also acknowledges that he received
some PSDS training. Complainant's focus is that he should have received
more PSDS training. Thus, complainant's argument that other employees,
outside the PSDS section, received PSDS training is not sufficient without
also knowing the scope of the training. Complainant also argues that
many people received ETC-LAN training without a formal bid into the ETC
section. The attempt to analogize PSDS training with ETC-LAN training
is not a valid comparison, because they are different systems and the
agency's needs could vary with respect to each system, even given that
both systems had been in the process of being phased out by the agency.
Indeed, complainant acknowledges that after PSDS was discontinued,
ETC-LAN continued to operate.
Complainant also suggested, in an effort to show pretext, that he has
been the subject of continued harassment. The evidence to support the
allegation has not been proffered. Without more, the Commission finds
that the record does not support a finding of pretext.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01984805 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 18, 2001
Date