0120111980
07-27-2012
Estate of Percy A. Thrasher, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Estate of Percy A. Thrasher,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111980
Hearing No. 420-2010-00147X
Agency No. 1H-351-0041-09
DECISION
Complainant's estate filed an appeal from the Agency's January 19, 2011 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Postal Clerk at the Agency's Huntsville Processing and Distribution facility in Huntsville, Alabama. On July 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (70) when:
On March 14, 2009, Complainant's bid job assignment was abolished.
Previously, in Thrasher v. U.S. Postal Serv., EEOC Appeal No. 0120093775 (March 4, 2010), the Commission ordered the Agency to continue processing the complaint after finding that Complainant's complaint stated a harm or loss to Complainant, despite a settlement agreement reached through the Agency's negotiated grievance process that resulted in a favorable change to Complainant's duty hours and an award for violations of the Agency's collective bargaining agreement.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Following the death of Complainant on August 31, 2010, the AJ dismissed Complainant's hearing request and remanded the complaint to the Agency for a final decision. The Agency issued a Final Decision pursuant to 29 C.F.R. � 1614.110(b). Complainant's estate has not argued that he was improperly denied a hearing.
In its Decision, the Agency found that Complainant failed to establish a prima facie case of discrimination on any basis. Specifically, Complainant's position, with duty hours of 7:00 am to 3:30 pm had been abolished and Complainant was reassigned to a position with duty hours of 2:00 am to 10:30 am. The Agency found that none of the employees that Complainant believed had been treated more favorably were similarly situated. Those employees Complainant alleged were treated preferentially were limited duty employees (E1 and E2); did not hold the same position as Complainant (E3); or were Clerks of a different level (E1 and E2) than Complainant. Thus, none of the identified employees could be reasonably compared to Complainant for purposes of establishing discrimination.
Further, the Agency found that Complainant failed to show that the Agency's legitimate, non-discriminatory reasons for its actions were a pretext to mask discrimination. Specifically, the Agency considered that a number of positions were abolished by the Agency's Southeast Area Manager In-Plant Support (MIPS) team that reviewed all of the clerk positions at Complainant's facility following a decrease in mail volume. The Agency noted that management officials stated that Complainant was treated the same as other clerks at his pay location and that employees were moved to match the workflow. The Agency found no evidence that the reasons given by the responsible management officials were untrue or unworthy of belief. The Decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant states that the Agency's restructuring and reassignment of employees was contrary to the principles of the Agency's collective bargaining agreement and that the identified employees were similar enough for EEO purposes. Specifically, Complainant states that the Agency is not permitted to favor limited duty employees (E1 and E2) where doing so violates seniority as it did in this case. Complainant states that despite the title difference, Complainant and E3 performed the same duties. Complainant states that his seniority should have required that the Agency allow him to retain his job duties and his Tour II hours before his tasks and hours were given to younger, female employees with less seniority.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
In the instant case we find that Complainant's allegations regarding the propriety of the Agency's restructuring and reassignment of Complainant with respect to his seniority compared to that of the other employees is a matter properly addressed, as Complainant did, through the Agency's negotiated grievance process. The proper forum for Complainant to raise any further challenge to actions which Complainant believes violates the Agency's system of seniority continues to be that forum. It is inappropriate to attempt to use the EEO process to enforce the Agency's collective bargaining agreement by contending that he was treated less favorably than employees in limited duty positions and that treatment violates the Agency's seniority system.
We further find that Complainant and E1, E2 and E3, are not similarly situated because all relevant aspects of their work situation are not identical or nearly identical to Complainant's work situation. We find the record indicates that Complainant was a PS-7, Special Postal Clerk. E1 and E2 are limited duty, PS-6 Mail Processing Clerks. E3 is a PS-7 General Expediter.1 E3 did not hold the same position that Complainant held prior to the abolishment of his position. E1 and E2, the record shows, were assigned to duties within medical restrictions that Complainant did not have. We find Complainant and the three identified employees were therefore not similarly situated. We find that Complainant has not presented evidence that more likely than not his sex or age motivated the Agency to abolish his position.
CONCLUSION
We AFFIRM the Agency's Final Decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 27, 2012
__________________
Date
1 We further note that all of the identified employees and Complainant are over 40 years of age, although at 69 as of March 5, 2009, Complainant was the oldest. E1's birth year is 1947, E2's 1952, and E3 was born in 1950. Two additional male Mail Processing Clerks, E4 (b. 1950) and E5 (b. 1947) were also notified that their positions were being abolished.
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0120111980
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111980