David C. Martines, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A33936_r (E.E.O.C. Oct. 14, 2003)

01A33936_r

10-14-2003

David C. Martines, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


David C. Martines, Jr. v. United States Postal Service

01A33936

October 14, 2003

.

David C. Martines, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33936

Agency No. 1C-241-0012-02

DECISION

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.

The record reveals that during the relevant time, complainant was

employed as a Bulk Mail Technician at the agency's Business Mail Entry

Unit in Roanoke, Virginia. Complainant sought EEO counseling and

subsequently filed a formal complaint on April 19, 2002, alleging that

he was discriminated against on the basis of national origin (Hispanic)

when on January 10, 2002, after accepting a detail, he was informed

that the policy of offering detail assignments had changed from the

long-standing practice of offering a detail to a senior level 6 clerk

and paying out of schedule pay.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

On May 21, 2003, the agency issued a final decision finding

no discrimination. Specifically, the agency determined that

complainant failed to establish a prima facie case of national origin

discrimination. The agency further determined that management articulated

legitimate, nondiscriminatory reasons for its actions. Further, the

agency found that complainant failed to present any evidence which

demonstrated that the agency's articulated reasons for its actions were

a pretext for discrimination.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency

to articulate a legitimate, nondiscriminatory reason for its actions. See

Texas Department of Community 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review, the Commission finds that the evidence supports a

determination that the agency

articulated legitimate, non-discriminatory reasons for its employment

actions. The agency determined that there was no support for

complainant's claim that when he, one of the most senior clerks decided

to accept a detail, his Supervisor changed the out-of-schedule policy.

The record in this case contains an affidavit dated July 1, 2002, from

complainant's Supervisor. Therein, the Supervisor stated that in the

past, all employees including complainant, received out-of-schedule pay

on any type of detail when they worked outside their normal schedule.

The Supervisor further stated that after he became aware that he was

paying out-of-schedule when it was not due, he notified all employees,

including complainant, of a change in policy that there would be no more

out-of-schedule pay, consistent with the agency's policy in Handbook

F-21, Section 233.1.18. Furthermore, the Supervisor stated that after

notifying all employees of the change in policy, complainant turned

down details because he understood that he would not get out-of-schedule

pay. The agency noted that complainant claimed that the Supervisor went

to the union and solicited the union to change the policy for receiving

out-of-schedule pay; however, the Supervisor stated that he did not go

to the union to solicit policy change, but solely for clarification of

the union's position on the out-of-schedule policy.

Complainant has not demonstrated that the agency's articulated reasons

for the denial of out-of-schedule pay when he accepted a detail were a

pretext for discrimination. Accordingly, the agency's decision finding

no discrimination is 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

October 14, 2003

__________________

Date