0120081005
03-25-2008
Louis F. Spadaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louis F. Spadaro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081005
Agency No. 4C190010507
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 26, 2007 final decision 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.
In an EEO complaint filed on July 10, 2007, complainant alleged that
the agency discriminated against him on the basis of race (Caucasian)
when management removed him from 204B Acting Supervisor duties, and when,
on or about June 29, 2007, he was not paid properly.
At the time of the events at issue, complainant was employed by the agency
as a City Carrier in Philadelphia, Pennsylvania, and was serving as a 204B
Acting Supervisor of Customer Service in the Pt. Breeze Station. During
the investigation into the instant complaint, the Supervisor of Customer
Service (African American) provided a statement in which she asserted she
decided to remove complainant's 204B Acting Supervisor duties from him
because of "unacceptable" work performance. The Supervisor stated she
told all the subordinate supervisors that they needed to act as back-up
for their peers and so need to learn all supervisory functions. She said
complainant was upset with this requirement and indicated a desire not
to perform duties outside his position. She also indicated that during
a week in April 2007, when the station was short-staffed, complainant
refused to deliver mail when he instructed him to do so despite the fact
that all the other subordinate supervisors were delivering mail. In his
statement, complainant said that he refused to deliver mail because he
was upset about his wife having to go to the hospital with chest pains.
He claims that he tried to explain this to the Supervisor, who got angry
and removed him as an acting supervisor.
The Supervisor also asserted that complainant failed to submit various
reports and numbers despite being instructed to do so. The Manager of
Customer Service (African American) also stated that complainant was
unable or unwilling to submit various reports required by upper level
management, especially carrier operations information and accident
or missing vehicle reports. The Manager stated complainant was given
several discussions regarding proper procedures as well as his performance
problems, but continued to have poor performance issues.
With regard to the pay issue, complainant asserts he requested various
types of leave for different days during Pay Period 13 2007, but his
pay and leave statement for that period did not properly reflect this
approved leave. The investigation confirmed that pay errors were made
during this pay period, but does not explain why. However, the Acting
Manager of Customer Service (Caucasian) stated that when complainant
informed her of the errors, which she believed were inadvertently made,
appropriate corrections were made. The Acting Manager said she offered
complainant a pay advance for the missing pay, but he declined her offer.
The Acting Manager also stated she had to perform similar pay adjustment
for other employees (three African Americans and one East Indian) during
this same time period
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).
In the instant case, complainant has failed to show that the agency's
reasons for its actions were a pretext for discrimination. The record
reflects that it was complainant's behavior and performance which resulted
in his removal from acting supervisor duties. The record also reflects
that other employees also had problems with their pay and once informed,
management worked to fix the problem.
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.
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
March 25, 2008
__________________
Date
2
0120081005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081005