Gregg W. Silverman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMay 18, 2007
0120070960 (E.E.O.C. May. 18, 2007)

0120070960

05-18-2007

Gregg W. Silverman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Gregg W. Silverman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120070960

Agency No. 1H329000606

Hearing No. 510-2006-00145X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 7, 2006 final decision (FAD) 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. Complainant alleged

that the agency discriminated against him on the basis of reprisal for

prior protected EEO activity under Title VII of the Civil Rights Act of

1964 when, on January 30, 2006 and February 13, 2006, his requests for

a temporary change of schedule for personal convenience were denied.1

Complainant filed his formal complaint with the agency on February 21,

2006. The record indicates that complainant was employed as a full-time

Level 4 Mail Handler at the agency's Mid-Florida Plant and Distribution

Center ("facility") on Tour 2 (7 a.m. to 3:30 p.m.) with Saturday and

Sunday as scheduled days off. Complainant alleged that the facility's

Supervisor, Distribution Operations (SDO) and the Manager, Distribution

Operations (MDO), retaliated against him when they failed to approve

a voluntary change of schedule. The record indicates that complainant

sought to advance his starting time on his regularly scheduled days to

the night before so he could work Tour 1 (12:30 a.m. to 7:00 a.m.) on

those days rather than Tour 2. Rather than changing his schedule,

complainant was granted 8 hours of emergency annual leave on January

31, 2006 and 8 hours of "court" leave on February 14, 2006 pursuant to

his leave requests. Investigative Report (IR) at Exhibit 4. The MDO

denied complainant's request for a change of tours as he was the only

Mail Handler available on the dates at issue to work the high volume

"patch-up" area which was complainant's special assignment/regular tour

of duty, and thus he needed to work his given assignment on those days.

IR at Affidavit C; Exhibit 9.

The record includes examples of employees (including complainant)

who have been granted changes in schedule of one (1) hour, advancing a

starting time from 7 a.m. to 6 a.m. While there was evidence of another

employee who had been allowed to change her scheduled days off, there

was no evidence of granting schedule changes from one tour to another.

The FAD found that complainant failed to establish a prima facie case of

retaliation. In so finding, the FAD noted that while complainant engaged

in protected activity and the agency officials were aware of the activity,

he failed to show that he was adversely affected by the agency's action.

In so finding, the FAD noted the terms and conditions of complainant's

employment did not include the ability to change his schedule upon

request; schedule changes are granted at the discretion of the agency.

While the agency had granted complainant and other employees schedule

adjustments, a change in tours had never been granted. Further, the FAD

found that complainant's need to have days off on January 31, 2006 and

February 14, 2006 was resolved by giving him leave for the days at issue.

The FAD noted that no adverse action was taken against complainant for

taking the dates at issue off.

The FAD also found that even assuming, arguendo, that complainant

established a prima facie case of retaliation, the agency articulated

legitimate, nondiscriminatory reasons for its actions. The MDO stated

that she chose not to grant complainant's request for a schedule change to

another tour, as the type of work complainant sought to perform on Tour

1 was already covered by other facility personnel and no other facility

employee could have performed Tour 2. Facility management denied any

motive to retaliate; the MDO and the SDO both stated that had they agreed

to the schedule change requested by complainant, it would have expanded

upon the typical way schedule changes had been requested and granted at

the facility.

On appeal, complainant alleged that he was the victim of retaliation

as he was denied both the temporary schedule change for the two (2)

dates at issue and was also denied annual leave requests for those days.

The agency responded, requesting that the agency's FAD should be approved

as complainant failed to establish retaliation.

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. In so finding, we concur with

the FAD's conclusion that assuming, arguendo, complainant established

a prima facie case of retaliation, the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, we note that

the MDO stated that she chose not to grant complainant's request for

a change in tours as other employees were scheduled to perform Tour 1,

while there were no other facility employees who could have covered Tour

2 on the dates at issue. In addition, the record shows that complainant

was granted leave for the dates he needed to be absent from the facility

for personal reasons. IR at Exhibit 4. The MDO also stated that there

was no precedent at the facility for granting changes in regular tours

of duty, but in the past temporary changes in employee's starting time

and scheduled days off had been granted.2 IR at Exhibit 5, 6. We find

that complainant has not proffered any evidence which establishes that

the agency's articulated reasons for its actions were more likely than

not a pretext for retaliation. As such, we affirm the agency's 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

___05/18/07________________

Date

1 Complainant initially requested a hearing before an Administrative Judge

(AJ); however, by letter dated September 21, 2006, he withdrew his request

and asked for a final agency decision. As such, on September 29, 2006,

the AJ remanded the case to the agency for a decision.

2 The record indicates that in November and December of 2005, complainant

requested and was granted temporary schedule changes. IR at Exhibit 5.

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0120070960

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070960