0120073590
11-29-2007
Gerald A. Kopciowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald A. Kopciowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073590
Agency No. 1B-141-0008-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 11, 2007 final decision concerning his
equal employment opportunity (EEO) complaint claiming 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
During the period at issue, complainant was employed as a General
Expeditor, at the agency's Buffalo Processing and Distribution Center
in Buffalo, New York.
On February 23, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the bases of age (D.O.B. 10/06/51) and in reprisal for prior EEO
activity when:
(1) management ignored the pre-arbitration resolution of August 22,
2006; and
(2) on November 23, 2006, he had to cover Flats and Automation Operations
without assistance.
On March 12, 2007, the agency issued a partial dismissal. The agency
accepted for investigation claim (2). However, the agency dismissed claim
(1) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Specifically, the agency determined that complainant attempted to use
the EEO complaint process to lodge a collateral attack on the grievance
process and that the proper forum was within the negotiated grievance
process.
At the conclusion of the investigation of claim (2), complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
did not prove that he was subjected to discrimination as alleged.
In its July 11, 2007 final decision, the agency dismissed claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim
finding that complainant was not aggrieved. Assuming for the sake
of argument that complainant stated a claim, the agency proceeded to
analyze claim (2) on the merits. The agency ultimately determined that
complainant failed to establish a prima facie case of age and reprisal
discrimination. The agency nevertheless found that management articulated
legitimate, nondiscriminatory reasons for its actions, which complainant
did not prove were pretext for age and reprisal discrimination.
The agency noted that according to the Manager Distribution Operations
(MDO), complainant volunteered to work on Thanksgiving Day, November 23,
2006; and was "brought in as an in house expeditor." The agency also
noted that the Acting Manager Distribution Operations (AM) stated that
because November 23, 2006 was a holiday, there were a reduced number
of dispatches so "we staffed Transit with one expeditor. We ran fewer
pieces of equipment in automation on that day which reduced the work
load by 50% for the Transit Expeditor." AM stated that complainant was
not provided with assistance because only one expeditor was needed due
to the lower volume of dispatches and machines. AM further stated that
"Article 11.6 of the National Clerk Contract states: The Intent of Article
11.6 is to permit the maximum number of full-time and part-time regular
employees to be off on the holiday while allowing employees who wish to
work the opportunity to work." AM stated that during the relevant time,
she was unaware of complainant's prior protected activity. Furthermore,
AM stated that she did not discriminate against complainant based on
his age and prior protected activity.
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 which complainant did not
prove were a pretext for discrimination, 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 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.1
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 29, 2007
__________________
Date
1 On appeal, complainant does not challenge a March 12, 2007 partial
dismissal issued by the agency regarding claim (1); therefore, we have
not addressed this issue in our decision.
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0120073590
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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