0120090466
04-14-2009
Joseph C. Payne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph C. Payne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090466
Agency No. 4K230010808
DECISION
On November 1, 2008, complainant filed an appeal from the agency's January
8, 2009 final decision1 (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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Custodial Laborer, PS-04, at the agency's Fredericksburg Post Office
in Fredericksburg, Virginia (facility). On May 24, 2008, complainant
filed an EEO complaint alleging that he was discriminated against on the
bases of religion (Christian), disability2 (Carpal Tunnel Syndrome), age
(54 years old at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. on or about January 15, 2008, complainant's request for a detail as
Senior Automotive Technician was denied;
2. on or about April 28, 2008, complainant was not selected for the
position of Vehicle Operations and Maintenance Assistant (VOMA), PS-6;
3. on June 30, 2008 complainant was issued a Letter of Warning (LOW)
for Failure to Follow Instructions; and
4. in July 2008 complainant was denied overtime opportunities.
At the conclusion of the investigation, 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged. Specifically,
the FAD found that complainant failed to establish a prima facie case
of discrimination but that assuming he did, the agency articulated
legitimate, nondiscriminatory reasons for its actions. The FAD found
that management officials maintained that the detail was assigned based
on seniority, complainant was not the "senior qualified applicant" for the
VOMA position, the LOW was issued because complainant had caused a hazard
to customers, and overtime was denied to everyone, not just complainant.
The agency concluded that complainant failed to establish that such
reasons were a pretext for discrimination.
On appeal, complainant argues that he has more seniority than the person
(S, religion, age and disability, unspecified) selected for both the
detail and the VOMA position. He maintains he is older than S, and that
he has worked for the agency longer than did S.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
He must generally establish a prima facie case by demonstrating 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
As regards claim 1, complainant's supervisor (RMO1: Baptist, 48 years old
at time of incidents, no claimed disability) denied that complainant was
denied a detail and instead maintained that complainant served a detail.
See Report of Investigation (ROI), Affidavit B, pp. 2, 3. The Officer
in Charge (RMO2: Protestant, 48 years old at time of incidents, no
claimed disability) indicated that complainant was denied a detail and
said that it was instead offered to S because S had more seniority than
did complainant. See ROI, Affidavit C, p. 2. RMO2 further stated that
seniority is determined from the date an employee is assigned to the
facility, which for complainant was on December 31, 1998, while for S
it was July 21, 1988. Id. Complainant does not address the apparent
inconsistency in the statements of RMO1 and RMO2. The record contains a
seniority list that shows that S had more seniority than did complainant.
ROI, Exhibit 6.
As regards claim 2, the selecting official (RMO3: Christian, 53 years
old at time of incidents, no claimed disability) said that complainant
was not selected for the VOMA position because "complainant was not
the senior qualified applicant." ROI, Affidavit E., p. 5. As regards
claim 3, RMO1 stated that complainant had been told to only mop half
the floor at a time when customers were present, but that on the date
in question, complainant failed to follow these directions and mopped
the floor using cleaning products that "caused customers and staff ill
[sic] from the fumes." ROI, Affidavit B, p. 8. As regards claim 4, RMO1
and the Postmaster (RMO4: Christian, 49 years old at time of incidents,
no claimed disability) both stated that there was no overtime available
for any employee of the facility and that overtime was denied to all
employees. See ROI, Affidavit B, p. 14 and Affidavit D, p. 1.
The burden thus returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reasons were pretextual,
that is, they were not the true reasons or the actions were influenced
by legally impermissible criteria. Burdine, 450 U.S. at 253; Hicks,
509 U.S. at 519. As regards claim 1, complainant argues that he is older
than S and that he joined the agency before S did, but he does not address
RMO2's contention that seniority is calculated based on when an employee
first began working at the facility, not when they first began working
for the agency. Nor does complainant address the seniority list showing
S with more seniority than complainant. In addition, complainant does
not address the apparent inconsistency between the statements of RMO1,
who denied that complainant was denied a detail, and RMO2, who admitted
that complainant was denied a detail. While such a discrepancy may be
evidence of pretext, it may simply be evidence of an inadvertent error
by RMO1. The burden of persuasion, however, remains with complainant,
id. at 256; McDonnell Douglas, 411 U.S. at 804, and we find that he has
failed to meet this burden. Nor has complainant established pretext
by showing, for example, that his qualifications for the VOMA position
were demonstrably superior to those of S. As regards claims 3 and 4,
complainant has not addressed the agency's articulated reasons at all.
Therefore, based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not met his burden of establishing, by a preponderance
of the evidence, that the agency's articulated reasons are a pretext
for discrimination. Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 14, 2009
__________________
Date
1 Complainant's appeal was filed before the FAD was issued.
2 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120090466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090466