01A30382
06-26-2003
Jerry DePalmo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry DePalmo v. United States Postal Service
01A30382
06-26-03
.
Jerry DePalmo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30382
Agency No. 4C442012801
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged he has been subject to disparate treatment in regard
to his duty hours, job assignments, and attendance on the job because
of his gender (male) and his age (D.O.B. 7/11/59).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Part Time Flexible (PTF) Carrier at Louisville Post Office in Ohio.
He filed a formal complaint of discrimination on June 15, 2001. In his
claim of gender discrimination, complainant alleged that his supervisor
did not provide him with a forty (40) hour week, while a female employee
received assignments he could have received. Complainant stated that this
female employee was also treated differently with regard to attendance
policies. In his claim of age discrimination, complainant stated that
he should have been working the duties and assignments of his supervisor.
The agency reached a final decision of no discrimination on September 9,
2002, and complainant timely filed this appeal on October 8, 2002.
ANALYSIS AND FINDINGS
The initial inquiry in a discrimination case usually focuses on whether
the complainant has established a prima facie case. 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). The complainant
has the burden to demonstrate that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). Where gender and age discrimination are at issue, as
they are here, complainant may establish a prima facie case by first
demonstrating that he belongs to a statutorily protected class, and that
similarly situated employees not within his protected group were treated
more favorably. See Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.1999);
Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282-83 (7th Cir. 1977).
In the instant case, complainant has shown that he is a member of two
protected classes: gender and age (43).
Based on the gender and discrimination claims, complainant has not shown
that similarly situated employees not in his protected group were treated
more favorably. In order for two or more employees to be considered
similarly situated, all relevant aspects of the employees' work situation
must be identical or nearly identical. Smith v. Monsanto Chemical Co.,
770 F.2d 719, 723 (8th Cir. 1985). For example, where employees work in
different departments, have different supervisors, perform different jobs,
and have different functions, they are not similarly situated. O'Neal
v. USPS, EEOC Request No. 05910490 (July 23, 1991); Allen v. Department
of the Navy, EEOC Request No. 05900539 (June 15, 1990).
Complainant used a female Casual Carrier (CC) as his basis of comparison
for his claim of gender discrimination. The record shows that during the
relevant time period, CC was appointed a Rural Carrier Associate/Carrier
and later a Rural Carrier Associate/Clerk, while complainant was a PTF
City Carrier. Personnel exhibits also show that complainant and CC had
different rate schedules, positions types, allowance codes and pay types.
Most relevant to complainant's complaint are the time schedules on
which employees work. PTF workers and casuals, in general, are defined
by different time limits. For these reasons, CC is not a similarly
situated employee as her job is based on different terms. Complainant,
therefore, did not meet his burden to establish a prima facie case of
gender discrimination.
Complainant used his Acting Supervisor (AS) as the comparison employee
in regard to age discrimination. Complainant said that AS was working
assignment and job duties which he should have been given. Complainant's
date of birth was July 11, 1959, and AS's date of birth was May 27,
1957. Thus, AS is not a valid comparison, as he is two years older
than complainant and part of the same protected class as complainant.
Complainant, therefore, did not meet his burden to establish a prima
facie case of age discrimination.
Complainant also named three other employees in his affidavit as
individuals not being subject to the same alleged discriminatory conduct:
a female PTF Distribution Clerk, a male Full Time Carrier, and a female
casual employee. The male Carrier is in complainant's protected class
(D.O.B. 4/13/1945), and therefore not a valid comparison. None of the
female employees are in similarly situated positions hence no appropriate
inference of discrimination can be made.
Assuming arguendo, that complainant had satisfied the first prong of the
McDonnell analysis, the burden would shift to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
Reasons proffered by the agency regarding job assignments among employees
include that it only assigns Sunday work to casuals and transitionals, as
it did with CC. Complainant's supervisor stated that he carried mail for
CC one day because the mail volume was too heavy for her. In a specific
instance, complainant stated that he should have received overtime because
CC received a job he should have been assigned. Complainant asserted
that he was entitled to 40 hours a week according to Article 7, Section
1, Part B (2) of the National Agreement of Letter Carriers. The agency
said complainant was not entitled to 40 hours a week. Complainant's
statement is misplaced. The section complainant references states
that the employer will �make every effort to insure that qualified and
available part-time flexible employees are utilized at the straight time
rate prior to assigning such work to casuals.� This section does not,
in fact, deal with the hours assignable to part-time flexible employees.
It is Article 7 Section 1, Part A (2) of the National Agreement of Letter
Carriers that discusses part time employees. This section states that
part time employees �shall be assigned to regular schedules of less than
40 hours in a service a week, or shall be available to work flexible
hours as assigned by the Employer.� In a separate grievance filed by
complainant about this matter, management agreed in good faith to schedule
PTF's for work so that they take priority over casuals when appropriate.
Regarding attendance policies and duty hours, the agency states that CC's
late rings were within her 8 unit allowance. The agency also stated that
it did not allow complainant paid leave because PTF employees cannot use
leave to get additional hours. On appeal, complainant does not show by a
preponderance of the evidence that there was a pretext of discrimination
for any of these actions.
CONCLUSION
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 complainant failed to establish a prima facie case
of discrimination.
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
_____06-26-03_____________
Date