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