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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0120055127