0120080330
05-20-2009
Paul M. Maestas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul M. Maestas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080330
Agency No. 4G870-0059-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 27, 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., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
him on the bases of national origin (Hispanic ), sex (male), and age
(42) when on February 1, 2007, he was notified that he was not entitled
to a yearly clothing allowance in his current bid position.1
The record reveals that complainant a General Expeditor (expeditor),
PS-06, at the Albuquerque, New Mexico Processing and Distribution Center
was notified that his yearly clothing allowance was going to be taken
away because his position did not entitle him to a clothing allowance.
Complainant questioned why other expeditors, female non-Hispanic,
received the allowance and his was being taken away. Upon receipt of this
information, management immediately discontinued the other expeditor's
clothing allowances, unless they had previously had a clothing allowance
on their bid job. Complainant maintained that expeditors should be
granted clothing allowances.
Following an investigation by the agency, complainant failed to
request either a final agency decision (FAD) or a hearing before an
Administrative Judge (AJ) so a FAD was issued. The FAD found that
complainant had not been discriminated against. Specifically, the FAD
found that the agency had articulated a legitimate nondiscriminatory
reason for its action, namely, that expeditor positions did not warrant
a clothing allowance pursuant to an agreement between management and
the union. The agency explained that as soon as it became aware that
several expeditors who were not entitled to clothing allowances had
been inadvertently receiving clothing allowances, all benefits were
immediately discontinued. The agency maintained that complainant's
protected bases had nothing to do with this matter. The agency found
that complainant failed to demonstrate that the agency's reasons were
pretexts for discrimination.
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.
The Commission finds that even if we assume arguendo that complainant
established a prima facie case of discrimination as to all bases, the
agency articulated a legitimate nondiscriminatory reason for its action,
namely, that complainant was not entitled to a clothing allowance in his
bid position as confirmed by his then current Standard Form 50. Further,
the evidence shows that, as complainant pointed out, other expeditors
had been receiving clothing allowances. However, upon learning this, the
agency determined that those benefits were unauthorized and discontinued
those clothing allowances. Complainant failed to show that the agency's
articulated reasons were pretext for prohibited discrimination.
Accordingly, the preponderance of the evidence of record does not
establish that discrimination occurred.
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
05/20/09
__________________
Date
1 This matter was settled at the Step 3 of the grievance procedure.
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0120080330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013