0120072829
09-07-2007
Peggy A. Wilmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peggy A. Wilmore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072829
Hearing No. 530-2006-00165X
Agency No. 1A-079-0001-06
DECISION
On May 31, 2007, complainant filed an appeal from the agency's May 2,
2007 final action concerning her 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked
as a Transfer Clerk, PS-06, at the agency's air mail facility at the
Newark International Airport in Newark, New Jersey. On January 26,
2006, complainant filed a formal EEO complaint wherein she claimed
that she was discriminated against on the bases of race (Black) and in
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when she was not offered overtime on October 9, 16,
and 23, 2005.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on April 17, 2007, and
issued a decision on April 30, 2007. At the hearing, in addition to
the aforementioned bases, the AJ addressed the bases of sex (female) and
age (dob 9/10/47) discrimination. The AJ found that complainant was not
discriminated against on the alleged bases. The AJ found that complainant
failed to establish a prima facie case of discrimination under each of
the alleged bases. The AJ based his finding as to each basis except for
reprisal on the fact that complainant failed to identify a similarly
situated comparison outside her protected groups who was permitted to
work overtime on the dates at issue. According to the AJ, none of the
employees that worked for the Supervisor, Distribution Operations,
during the month of October 2005, worked overtime. With respect to
complainant's claim of reprisal, the AJ found that complainant failed
to establish that the Supervisor, Distribution Operations, had knowledge
of her prior EEO activity. The AJ further found that complainant failed
to establish that the Supervisor denied her overtime under the orders of
the Plant Manager in reprisal for her prior EEO activity. Additionally,
the AJ found that complainant failed to establish that there was a need
for overtime on the dates at issue.
The agency subsequently issued a final action implementing the AJ's
finding that complainant failed to prove that she was subjected to
discrimination as alleged. Thereafter, complainant filed the instant
appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
We shall assume arguendo, that complainant has established a prima facie
case under the alleged bases. The agency stated that complainant was
not issued overtime on the dates at issue because there was sufficient
manpower to run the operation on those dates. According to the
Supervisor, none of the nine employees he supervised in October 2005,
worked overtime during that month. We find that the agency articulated
a legitimate, nondiscriminatory reason for not granting complainant
overtime.
Complainant attempted to show pretext by establishing that the Supervisor
performed some of her job duties on the dates at issue. Complainant
contended that other employees told her they had seen the Supervisor
performing her duties on her rest days. Complainant testified that the
Supervisor admitted to her that he had performed her duties on October 9,
2005. Complainant maintained that there was overtime available for other
employees, but not for her. We observe that the Supervisor testified
that he did not perform complainant's job duties on the dates at issue.
According to the Supervisor, he would perform complainant's duties only
in the event of an emergency and otherwise complainant's job duties on her
rest days would have been assigned to another craft employee. Upon review
of the record, we find no evidence that other employees received overtime
on the dates in question. Even if the Supervisor performed some of
complainant's duties on these days, that is not persuasive evidence that
discriminatory intent was involved. Further, complainant acknowledged
that she did not directly ask the Supervisor whether she could work
overtime on October 16 and 23, 2005. Upon review of the record,
the Commission finds that the AJ's decision finding no race, sex,
age or reprisal discrimination is supported by substantial evidence.
The Commission agrees with the AJ's finding that complainant failed to
establish by a preponderance of the evidence that her not being offered
overtime on the relevant dates was due to discriminatory motivation.
The agency's decision finding no discrimination is AFFIRMED.
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
September 7, 2007
__________________
Date
3
2
01200728
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072829