0120141431
07-10-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120141431
Agency No. 4G-350-0049-13
DECISION
On February 6, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 13, 2014, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Review Clerk at the Agency's Gadsden Post Office in Gadsden, Alabama. This was a full time mail processing clerk position.
On May 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (African-American), color (Black), age (57), disability, and reprisal for prior equal employment opportunity (EEO) activity when:
1. He was denied overtime hours on December 31, 2012, January 12, 2013, February 6, 9, and 16, 2013, March 2, 2013, and May 10, 2013, and
2. His bid was abolished on April 13, 2013.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination.
The Agency found that Complainant failed to make out a prima facie case of disability discrimination because he did not show he was an individual with a disability, management was not aware he had a medical condition, and he was not disparately treated. It found that Complainant failed to establish a prima facie case of race, color and age discrimination because he did not show he was disparately treated. The Agency found that Complainant did not make out a prima facie case of reprisal discrimination because his last formal complaint was settled in March 2012, too far in time from the alleged discrimination to raise an inference of discrimination, nor did he otherwise show a nexus between his EEO activity and the alleged discrimination.
The Agency found that assuming, for the sake of analysis, that Complainant established prima facie cases of discrimination, management articulated legitimate, nondiscriminatory reasons for its actions. On overtime, the Agency recounted Complainant's Postmaster's explanations in her second supplemental affidavit for each of the dates Complainant alleged he was denied overtime, which will be set forth below. On the abolishment of Complainant's job, the Agency found that the bid jobs of all clerks in the Gadsden Post Office were abolished to better align with the needs of the office.
ANALYSIS AND FINDINGS
On appeal, Complainant submits documentation on grievances he and others filed regarding the denial of overtime for four of the above dates. He argues that the reasons his Postmaster gave in the grievance process for the denials of overtime are inconsistent with the reasons she gave in the EEO investigation.
The applicable collective bargaining agreement (CBA), provides as follows:
When needed, overtime work for regular full-time employees shall be scheduled among qualified employees doing similar work in the work location where the employees regularly work in accordance with the following:
A. ...employees desiring to work overtime...shall place their names on an "Overtime Desired" list.
B. Lists will be established by craft, section, or tour in accordance with...Local Implementation.
C. ...
a. When...the need for overtime arises, employees with the necessary skills having listed their names will be selected in order of seniority on a rotating basis;
b. Those absent or on leave shall be passed over....
Report of Investigation (ROI), Exh. 19, at 383-384.
The local memorandum of understanding between the Gadsden Post Office and the Gadsden Area Local, APWU, provided:
1. An overtime desired list will be established for the clerk craft by tours 1 & 3. The list will be administered in accordance in accordance with [the CBA]. Tour 1 and Tour 3 clerks will only be allowed to sign the list for the tour to which they are regularly assigned. Non-mail processing clerks may sign either but not both overtime desired lists.
2. When practicable, employees will be give at least one (1) hour advance notice before being required to work overtime.
ROI, Exh. 20, at 395. The copy of the local memorandum in the ROI is not dated, and we were unable to determine the dates of coverage.
The record suggests that the vast majority of clerks in Complainant's post office are white. Complainant contended that when it is his turn to perform overtime, he is skipped over in favor of his white co-workers, and he only gets treated fairly when he files a grievance. He contended that management is supposed to choose the clerk with the lowest amount of overtime. He contended that there is an "overtime tracking list" which shows the amounts of overtime clerks have worked and this evidences he was skipped over. On appeal, Complainant submitted a 2006 memorandum of understanding between the Gadsden Post Office and the Gadsden Area Local which indicated that employees standing time on the overtime desired list is determined by the total amount of overtime hours offered and worked during the course of the overtime quarter.
According to the counselor's report, the Postmaster (African-American, age 51) said that in assigning overtime, management considers: 1) who is there, 2) what area overtime is needed, and 3) what employees have the skills and qualification to perform. In her second supplemental affidavit, the Postmaster stated that Subordinate Supervisors 1 (Black, age 40) and 2 were responsible for awarding overtime to clerks at the Gadsden Post Office during the relevant time.
Regarding December 31, 2012, the union filed a grievance contending that from 11:45 AM to 1 PM two members of management improperly performed clerk work, and hence clerks on the overtime desired list were entitled to overtime. The union contended that management chose to allow available clerks to clock out at the end of their tour, knowing there was mail to be boxed. Comparison 1 (Full-time Mail Processing Clerk, White, age 51) worked overtime, and the union sought as a remedy that Complainant be paid overtime. In initially denying the grievance, the Postmaster wrote that there were six clerks on leave and three more called in (presumably for leave), and there were no other options for getting the mail boxed. The grievance was settled with a $131 back pay payment to Complainant. In her second supplemental affidavit the Postmaster wrote that Complainant left work before he was could be told to work overtime. Complainant was scheduled to leave at 11 AM.1 He contends that the overtime tracking list shows he should have been chosen for overtime before Comparison 1.
Regarding January 12, 2013, the union filed a grievance contending that the Agency issued eight hours of overtime to Comparison 2 (Full-time Mail Processing Clerk, White, age 50) even though Complainant had fewer hours on the overtime desired list. The parties settled the grievance with the promise that Complainant would be given the opportunity to make up 8 hours of overtime. In her first affidavit the Postmaster wrote there was an error, and in her second supplemental affidavit wrote Complainant could not seen to give him overtime. Complainant contended that he was skipped over in favor of Comparison 2.
Regarding Complainant not receiving overtime on February 6, 2013, in her first affidavit the Postmaster wrote she had no knowledge of the matter, and in her second supplemental affidavit wrote Complainant could not be located to issue overtime. Complainant contended that for February 6, 9, and 16, Comparisons 1 and 2 were treated favorably.
Regarding February 9, 2013, the union filed a grievance contending that Complainant was skipped over on the overtime desired list in favor of Comparison 1, who had more hours on the overtime desired list than Complainant. In denying the grievance, the Postmaster explained that when the need for overtime was discovered on February 8, 2013, Complainant was away on leave.2 She gave the same explanation in her affidavits. In denying the grievance, the Postmaster added that the CBA provides that those absent or on leave shall be passed over. The union countered the above provision of the CBA applied to the day the overtime was needed, Complainant was available to work overtime on February 9, 2013, his regularly non-scheduled day, and he could have been reached by telephone.
Regarding February 16, 2013, the union filed a grievance contending that the Agency issued eight hours of overtime to Comparison 3 (White, age 52), skipping over Complainant on the overtime desired list. The parties settled the grievance with the promise that Complainant would be given the opportunity to make up 8 hours of overtime. In her first affidavit the Postmaster wrote that there was an error and Complainant was given eight hours of makeup overtime, and in her second supplemental affidavit she wrote Complainant was not seen to ask him to stay for overtime.
Regarding March 2, 2013, the union filed a grievance contending management violated the CBA when it issued overtime for tour 1 to Comparison 4 (Full-time Mail Processing Clerk, White, age 66), who was on the tour 3 overtime desired list rather than Complainant who was on the tour 1 overtime desired list and had the least hours of overtime on tour 1. In initially denying the grievance, the Postmaster explained that Comparison 4 had no overtime hours and the overtime did not require scheme training. The union countered that the reason Comparison 4 had no overtime was because it was not being used on her tour, that overtime is issued by tour, and Complainant could have performed non-scheme work. The Agency settled the grievance by paying Complainant $300 in back pay. The settlement includes a notation that the amount of overtime worked by a full time employee is irrelevant. In her first affidavit the Postmaster explained that another employee with less overtime was scheduled, and in her second supplemental affidavit wrote Complainant was not provided overtime because someone was needed to work on the dock. She claimed there was only one overtime desired list. Complainant contended Comparison 1 was given the opportunity to work overtime on March 2, 2013.
Regarding Complainant not receiving overtime on May 10, 2013, in her first affidavit the Postmaster wrote she had no knowledge of the matter, and in her second supplemental affidavit wrote Complainant was not needed. Complainant contended that Comparison 4 improperly received the overtime instead of him.
Subordinate Supervisor 1 submitted an affidavit, but a reading thereof indicates that she had little recollection of the alleged overtime denial events.
On the abolishment of Complainant's position in April 2013, the Manager of Post Office Operations (Black, age 42), the Postmaster, and Subordinate Supervisor 1 consistently stated that all clerk jobs were abolished at Complainant's post office. The Manager wrote this was done for operational needs, the Postmaster wrote it was done due to the needs of the service, and the Subordinate Supervisor wrote it was done pursuant to a restructuring. After Complainant's position was abolished, he became a full time unassigned regular Review Clerk.
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Applying the above, we find that Complainant failed to prove discrimination on any basis regarding issue 2, the abolishment of his position.3 While the Agency's reason for abolishing Complainant's position is somewhat vague, given that all clerk positions were abolished we decline to find that this was done based on one of Complainant's protected bases in this disparate treatment case.
We find that the Agency's investigation of issue 1 is insufficient to allow a reasonable fact factor to draw conclusions as to whether discrimination occurred. 29 C.F.R. � 1614.108(b). Because the investigation of issue 1 was insufficient, we will not make any factual or legal determinations thereon at this point.
As an initial matter, the EEOC does not have authority to enforce the CBA, and a violation thereof does not necessitate a finding of discrimination. The question in this case is whether Complainant was being disparately treated because of a protected basis. For example, if others outside Complainant's protected bases were routinely skipped over on the overtime desired list for the same or similar reasons as Complainant, even if this violated the CBA, this would militate against a finding of discrimination. A key question is whether Complainant was asked to perform overtime approximately the same number of times or amount of time as other clerks on the tour 1 overtime desired list. If he is one of the only people in his protected classes who is routinely skipped over on the overtime desired list, and is only treated fairly after he files grievances, this would be evidence of discrimination. The record does not contain this information, and it should be gathered. The relevant time period is December 2012 through May 2013. The Agency should also clarify whether the proper practice was to issue overtime by rotation to clerks on the tour 1 overtime desired list based on the number of times they were issued overtime or by the amount of overtime they worked during the quarter, and what the actual practice was, even if it was not either one of these things.
The record should contain an explanation and documentation of the overtime desired list(s) for tour 1 and if there is one tour 3, and an explanation and documentation of whether it was Complainant's turn to be asked for overtime on the disputed dates. Further, the record should be supplemented with decipherable documentation (with explanations of what it means, if necessary), identifying who worked overtime on the dates in question in place of Complainant, and the hours involved on each date.
Moreover, in several instances, the Postmaster's responses to why Complainant was not issued overtime changed, but she did not explain why this occurred. She should be asked to explain. Also, some of her responses were insufficient to allow an understanding of why denials happened -- for example, for March 2, 2013, the Postmaster wrote in part that someone was needed on the dock, but did not explain why Complainant could not do this work, and for May 10, 2013, she wrote that Complainant was not needed, but did not explain why this was someone else was allegedly given overtime. She should be asked to provide fuller explanations.
The Postmaster stated that Subordinate Supervisors 1 and 2 were responsible for awarding overtime to clerks at the Gadsden Post Office during the relevant time. While Subordinate Supervisor 1 provided an affidavit, she had little recollection of the events, and Subordinate Supervisor 2 did not submit an affidavit. On remand, both Subordinate Supervisors 1 and 2 should be asked in detail about Complainant's denial of overtime claim, and be provided an opportunity to review whatever documentation is necessary to refresh their recollections and help explain why events occurred.
The Agency's finding of no discrimination on issue 2 is AFFIRMED. Its finding of no discrimination on issue 1 is REVERSED. On remand, the Agency shall comply with the order below.
ORDER
The Agency is ordered to reinvestigate issue 1 in accordance with the specific guidance in this decision and 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received issue 1 within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the new investigative file and issue a decision on the merits of issue 1 which is appealable to this Commission. The Agency shall complete these actions within one hundred eighty (180) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time.4
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 10, 2014
__________________
Date
1 The record contains Complainant's clock rings for all the dates he alleged he was denied overtime. We are unable to decipher the meaning of the clock ring sheets.
2 In the grievance response the Postmaster mistakenly wrote February 28, 2013, but meant February 8, 2013.
3 For purposes of analysis, we assume without finding that Complainant is an individual with a disability.
4 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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