Davy K. Wright, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Appeal No. 0120055127 Agency No. 4G-780-0089-03

Equal Employment Opportunity CommissionMay 2, 2007
0120055127 (E.E.O.C. May. 2, 2007)

0120055127

05-02-2007

Davy K. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Appeal No. 0120055127 Agency No. 4G-780-0089-03


Davy K. Wright,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Appeal No. 0120055127

Agency No. 4G-780-0089-03

DECISION

On July 27, 2005, complainant filed an appeal from the agency's June 28,

2005, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �

1614.405(a). For the following reasons, the Commission AFFIRMS the

agency's final decision.1

Complainant was a Mail Handler, MH-4, at the agency's Austin Processing

and Distribution Center in Austin, Texas. Believing that he was subjected

to discrimination, complainant contacted the EEO office on December

14, 2002. Informal efforts to resolve complainant's concerns were

unsuccessful.

On July 24, 2003, complainant filed a formal complaint based on race

(Black), color (Black), sex (male), age (DOB 9/21/61), religion (not

specified), disability (right shoulder) and reprisal for prior protected

activity. Complainant's complaint was comprised of the following six

claims: (1) on November 1, 2002, he was issued a Notice of Proposed

Removal (reduced to a Letter of Warning (LOW)); (2) On February 11 or 12,

2003, his scheduled days were changed; (3) on an unspecified date, he was

continually denied overtime; (4) on an unspecified date he was subjected

to a supervisor's sarcastic, degrading and humiliating remarks; (5) on

an unspecified date, he was paged over the intercom to return back to his

duty station; and (6) on an unspecified date, after checking his Official

Personnel Folder (OPF) he found copies of numerous disciplinary actions

that he had not seen before, even though he checked his OPF frequently.

In correspondence dated November 25, 2003, the agency informed complainant

that claims (4), (5) and (6) were being dismissed on the grounds of

failure to state a claim. The agency accepted claims (1), (2) and (3)

for investigation. At the conclusion of the investigation, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). Thereafter, on April 14, 2004,

complainant withdrew his request for a hearing and instead requested that

the agency issue a final decision On July 6, 2004, the agency issued a

final decision finding no discrimination regarding claims (1) and (2). The

agency found that complainant failed to establish a prima facie case of

discrimination. Specifically, the agency stated that complainant did not

show that similarly situated employees outside his protected classes were

treated differently. With respect to complainant's basis of religion,

the agency found no evidence in the record that any management official

was aware of complainant's religion. Regarding the basis of age, the

agency stated that the responsible management officials were substantially

older than complainant, making it unlikely that age was a deciding factor

in the alleged actions. The agency also concluded that complainant failed

to prove he was disabled. The medical restrictions described in the record

were found by the agency to be moderate and not "substantially limiting"

to any major life activity. Finally, with respect to complainant's basis

of reprisal, the agency stated that the responsible management official

was unaware of complainant's prior EEO activity.

Assuming arguendo that complainant established a prima facie case,

the agency concluded that it articulated legitimate, non-discriminatory

reasons for its actions. Specifically, the agency stated that complainant

was issued a Notice of Proposed Removal (claim (1)), which was later

reduced to a LOW, for unsatisfactory performance. The agency found

that the notice was issued based on progressive discipline, and that

other employees were also disciplined for unsatisfactory attendance.

Regarding complainant's scheduled days being changed, (claim (2)),

the agency cited changes in operations as a result of an alliance with

FEDEX, surface network changes, decreases in volume and the deployment

of new equipment. Further, the former Plant Manager explained that the

decision to change complainant's schedule was based on operational needs

and his medical limitations. Regarding the alleged denial of overtime

(claim (3)), the agency found that complainant failed to identify any

date on which the alleged discriminatory event occurred, and dismissed

the claim on the grounds of untimely EEO Counselor contact.

Complainant filed an appeal with the Commission. In Wright v. USPS,

EEOC Appeal No. 01A45469 (March 18, 2005), the Commission found that

the agency inappropriately analyzed the matter identified herein as

claim (6) as a separate claim, and then inappropriately dismissed it

for failure to state a claim. To this end, the Commission determined

that the agency did not properly address the question as to whether

complainant established that the articulated reasons set forth for claim

(1), was actually a pretext for discrimination as identified in claim

(6). According to the Commission, the matter identified as claim (6)

should not have been viewed as an independent claim, but simply as

evidence related to claim (1). Consequently, claim (1) was remanded

to the agency for further consideration, i.e., the legitimacy of the

discipline recorded in complainant's OPF and purportedly relied upon

by the agency in issuing the Notice of Proposed Removal. In addition,

the Commission noted that claim (3) was dismissed in the agency's July

6, 2004 decision on the grounds of untimely EEO Counselor contact.

The Commission noted that the record failed to identify any date with

respect to complainant's claim that "I was also continually denied OT

...." Therefore, claim (3) was remanded to the agency for a determination

as to whether any OT (overtime) denials occurred within forty-five days

of complainant's December 14, 2002 EEO Counselor contact. The agency was

ordered to conduct a supplemental investigation on the issue of whether

and when complainant was denied overtime opportunities. The agency

was also ordered to supplement the record with documentation, including

affidavits if necessary, indicating when such denials occurred. Finally,

the Commission found that the agency's dismissal of claims (4), and (5),

and the agency's finding of no discrimination in claim (2) was proper.

The agency then issued two (2) final decisions on June 28, 2005.

Addressing claim (3), the agency's initial final decision noted that

complainant made initial contact with the agency on December 14, 2003.

The final decision considered a copy of Report TAC500R3 (Employee

Everything Report) from October 28, 2002 through December 27, 2002

as evidence to document that complainant was not denied overtime

opportunities. The final decision found that the record indicated

complainant was given many hours of overtime during the period at issue,

and thus was not denied overtime opportunities during the 45-day period

prior to his initial contact with the agency in December of 2003.

The final decision noted that complainant failed to identify a date or

dates of incident where he was not given overtime, and also complainant

provided no evidence that he was unaware of the time limit for contacting

an EEO Counselor. The final decision further found that complainant

had prior EEO activity, and thus he was aware of the time limits for

contacting an EEO Counselor.

Addressing complainant's claims (1) and (6), the agency issued a second

final decision, which found that on November 1, 2002, complainant was

issued a Notice of Proposed Removal by his Supervisor (S1). The second

final decision noted that complainant had prior disciplinary action

(in 2000, 2001 and 2002), and S1 stated that he decided to issue the

Notice of Removal based on the agency's progressive discipline policy.

The second final decision stated that complainant did not challenge the

authenticity of the discipline referenced or cited in the removal notice.

The second final decision noted that S1 stated he was not aware of any

protected activity by complainant, which made it difficult to believe

that he issued the Notice of Proposed Removal and reduced that discipline

based on retaliation.

In addition, the second final decision noted that the agency's collective

bargaining agreement allowed for the retention of disciplinary action

for two (2) years, and thus the discipline located in complainant's

OPF was discipline cited in the Notice of Removal. The second final

decision also found that complainant was aware of the existence of the

discipline in his OPF. Further, the second final decision noted that

while complainant argued that the OPF contained falsified documents,

he failed to identify them. As such, the second final decision found

that complainant failed to prove that he was subjected to discrimination

as he alleged.

On appeal, complainant alleged that: (1) the agency's legitimate,

nondiscriminatory reasons for issuing the November 1, 2002 discipline

were a pretext for discrimination; and (2) he was denied overtime

opportunities within 45 days of initial contact with the agency's EEO

Counselor. The agency responded to complainant's appeal, stating that

the record supports the agency's final decision on remand, which found

no discrimination or retaliation based on the November 1, 2002 Notice of

Proposed Removal. The agency also stated that the record supports the

final decision dismissing complainant's claim that he denied overtime

opportunities.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Initially, the Commission notes that our prior decision remanded

allegation (3) to the agency for a determination of whether complainant

was denied overtime opportunities during the 45-day period prior

to his initial EEO counselor contact on December 14, 2002. In the

agency's final decision, the agency submitted complainant's "clock

rings" for the time period between October 28, 2002 and December 27,

2002 as evidence of his overtime hours during that period. The clock

rings show that during the 45-day period prior to complainant's EEO

counselor contact, complainant worked overtime on the majority of his

on-duty days. For the period at issue, complainant worked a minimum

of 50 hours of overtime, including holidays. We further note that the

supervisor who was in charge of the overtime desired list beginning in

May of 2003, stated overtime was assigned on a rotating basis and in

accordance with complainant's medical restrictions. As such, we find

that the record does not support complainant's allegations that he was

continually denied overtime opportunities during the 45-day period prior

to his initiating EEO Counselor contact. The agency's final decision

on that claim contains documentation relative to complainant's overtime

opportunities during the relevant time period. We therefore affirm the

agency's final decision which dismissed complainant's claim (3).

Addressing complainant's claims (1) and (6), the Commission found in its

prior decision that the agency articulated legitimate, nondiscriminatory

reasons for issuing the November 1, 2002 Notice of Proposed Removal.

However, the Commission reviewed complainant's statement that he found

numerous disciplinary actions in his OPF which he had not previously

known about. The Commission found that the agency did not properly

address whether complainant established that the agency's articulated

reasons for issuing the Notice were more likely than not a pretext

for discrimination. The agency's second final decision on remand

found that S1 was specific about the prior discipline he considered

in issuing the Notice, and stated he referenced three (3) disciplinary

actions in complainant's record, referenced above. S1 did not reference

any other discipline in the Notice, and he stated that all prior steps

had been completed with complainant and the Notice was the next step.

The record indicates that complainant did not claim that the three

(3) disciplinary actions were cited in the Notice were false, and the

record did not demonstrate that S1 relied on any alleged discipline

referenced in his OPF which was previously undisclosed. Rather, the

record reflects that S1 identified the prior discipline he relied on in

issuing the Notice, and complainant was informed he could review the

material which was relied on to support the issuance of the Notice.

In addition, we concur with the finding in the second final decision

on remand that complainant failed to link any undisclosed discipline

in his OPF to the Notice. As such, we find that complainant failed to

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

more likely than not a pretext for discrimination or retaliation.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final decision and final decision on remand.

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

____5/2/07_______________

Date

1 Due to a new data system, this case has been redesignated with the

above-referenced appeal number.

2 The Commission presumed, for purposes of analysis only, and without

so finding, that complainant was an individual with a disability as he

alleged.

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0120055127

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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