0120082608
08-07-2008
Gary R. Dunn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary R. Dunn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082608
Agency No. 1E-857-0010-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 23, 2008 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the relevant time, complainant was employed as an Express Mail
Technician (Tour 3) at the agency's Tucson Processing & Distribution
Center in Tucson, Arizona.
On June 25, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the basis of age (54) when on March 21, 2007 and April 28, 2007,
his bid job was abolished.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 18, 2008, the AJ issued an order
dismissing the formal complaint from the hearing process. Specifically,
the AJ concluded that on February 14, 2008, she issued an Order to Show
Cause ordering complainant to show cause why sanctions should not be
imposed for his failure to cooperate in the processing of his complaint.
The AJ further concluded that because complainant did not respond to
her Order, she remanded the case to the agency for issuance of a final
decision. Therefore, the agency issued the instant final decision on
April 23, 2008.
In its April 23, 2008 final decision, the agency found no discrimination.
The agency found that complainant did not establish a prima facie case
of age discrimination. The agency further found even assuming, for
the sake of argument only, complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for its
actions, which complainant did not show were a pretext.
The Manager Distribution Operations (MDO) stated that he was the deciding
official to abolish complainant's bid job because it no longer required
eight (8) hours of work and it was no longer viable to retain the position
as a full-time slot. MDO further stated that there was not enough work
for complainant to perform, and that his minimum duties were transferred
to an Express Mail Clerk on Tour 1. MDO stated that while his two bid
jobs were abolished, complainant "retained his pay scale at no loss, and
also maintained his working schedule with the same days off. Therefore,
he suffered no loss. He was placed into another working position."
MDO stated that according to the Employee Labor Relations Manual and
the Clerk Contract agreement, management "has the right to abolish
position that are deemed no longer viable or serve a practical purpose
with respect to the needs of the Postal Service. An employee gainfully
employed is the goal and the necessity of the service." Furthermore,
MDO stated that complainant's age "had absolutely no barring on his
position or situation."
The Plant Manager (PM) stated that the decision to abolish complainant's
bid job was based on operational needs and the most effective use
of resources. Specifically, PM stated that MDO's decision to abolish
complainant's bid "was purely a business decision based on the fact that
[Complainant's] 8 hour work assignment had only about 2 hours (or less)
of actual workload, and that workload could be eliminated or absorbed
by the other Express technician on T2 and T1."
A claim of disparate treatment is examined under the three-party 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
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 7, 2008
Date
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0120082608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082608