01a52413
11-22-2005
Dwayne A. Bowman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Dwayne A. Bowman v. United States Postal Service
01A52413
November 22, 2005
.
Dwayne A. Bowman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A52413
Agency No. 1J-494-0031-02
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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Full-time Mail Processing Clerk, PS-06, at the agency's Grand Rapids,
Michigan, Processing and Distribution Center. Complainant sought EEO
counseling on May 29, 2002, and subsequently filed a formal complaint
on December 11, 2002. Complainant's complaint was unclear. The agency
accepted two issues. Complainant timely contested the agency's framing
of the issues. We find that based upon his response to the agency and
his affidavit that his complaint is alleging that he was discriminated
against on the bases of race (African-American), color (dark skin), sex
(male) and religion (Baptist) when:
(1) he was denied overtime assignments on scheduled days off, and
he was changed to unassigned regular status on September 7, 2002.
We also note that he raised allegations that the agency made fraudulent
statements and failed to process the instant complainant in a timely
manner. The agency did not accept these claims for investigation, and
we are unpersuaded that they are supported by any persuasive evidence.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to prove a
prima facie case of disparate treatment with respect to issue (1).
The agency found that one of the employees that complainant cited as
similarly situated was not in the same position as he was, as she was an
Expediter (C1). While the other employee (C2) was in the same position
as complainant, he worked the same amount of overtime as complainant.
The agency found that the agency stated a legitimate, nondiscriminatory
reason for its treatment of complainant. The Acting Manager,
Distributions Operations, stated that complainant and C2 had both worked
overtime one time during April through September 2002. C1, she stated,
worked overtime two times because she had special skills as a Nixie
Clerk which the complainant did not possess. The agency concluded that
complainant was unable to show that a discriminatory reason more likely
than not motivated the employer, or showed that the employer's proffered
explanation was unworthy of credence. The agency found no discrimination
with respect to complainant's complaint.
Concerning issue (2), the agency found that complainant failed to cite
a similarly situated employee outside of his protected groups who was
treated more favorably than he was. The agency found that management
stated a legitimate, nondiscriminatory reason for its treatment of
complainant. Specifically, the Acting Manager, Distributions Operations
stated that complainant was changed to an unassigned tour as a result
of restructuring of all three tours in the two Grand Rapids facilities.
This, she stated, was based upon the need of the agency to streamline
its operational efficiency and meet budgetary requirements. Further,
she stated that the labor agreement was followed in making the job
changes. The agency concluded that complainant was unable to show that a
discriminatory reason more likely than not motivated the Acting Manager,
or showed that her proffered explanation was unworthy of credence.
On appeal, complainant contends that C1 worked 30 days of overtime
during January 2, 2002, through April 3, 2002 while he only worked 16
days and that he occupied the same job as she did. Complainant asserts
that no special skill or training is required to work in the Nixie area.
The agency requests that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). First, complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
Complainant contended that C1 worked 30 hours of overtime during January
1, 2002, through April 2, 2002. However, the agency investigation
covered the period April 2002 through September 2002 which showed that
C1 worked two days of overtime and the complainant and C2 each worked
one day of overtime. Since April 2002 and ongoing is the time frame
referenced in the EEO Counselor's report, we accept it as the relevant
time frame for the overtime claim raised in the instant complaint, and we
decline to find that complainant established a prima facie case of race,
color, religious and sex discrimination as it pertains to this claim.
In reaching this conclusion, we find that no reasonable fact finder could
draw an inference of discrimination based on the fact that over a five
month period, complainant worked one day of overtime and C1 worked two
days.
With respect to issue (2), assuming, arguendo, that complainant
established a prima facie case of race, color, religious discrimination,
we find that the agency has articulated a legitimate, nondiscriminatory
reason for its treatment of complainant. Specifically, the Acting
Manager, Distributions Operations stated that complainant was changed
to an unassigned tour as a result of restructuring of all three tours.
She contended that this was due to the agency's need to streamline its
operational efficiency and meet budgetary requirements. Complainant
alleged that other employees, not in his protected classes, were treated
differently, but has not cited any names of other employees who were
Mail Clerks and were not assigned to unassigned regular status nor did he
provide any evidence of discriminatory animus. We find that complainant
has failed to present evidence from which a reasonable fact-finder could
conclude that the agency's action was motivated by discriminatory animus
toward complainant's protected classes or that the Acting Manager's
statement was a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
November 22, 2005
__________________
Date