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