01A42250_r
06-24-2004
Rodney Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rodney Washington v. United States Postal Service
01A42250
June 24, 2004
.
Rodney Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42250
Agency No. 4G-700-0024-02
Hearing No. 270-A2-9294X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
Complainant, a Mail Processor (modified position), PS-04, at the agency
Post Office in Alexandria, Louisiana, filed a formal EEO complaint
on March 29, 2002. Therein, complainant claimed that he was the
victim of unlawful employment discrimination on the bases of race
(African-American), color (black), disability (limited duty), age
(D.O.B. 12/2/54), and in reprisal for prior EEO activity when:
(1) on September 18, 2001, he was placed in an Absence Without Official
Leave (AWOL) status for an eight-hour period during September 14 -
15, 2001, after he had completed a PS Form 3189, Request for Temporary
Schedule Change for Personal Convenience to change his scheduled days
off from Sunday/Tuesday to Saturday/Sunday;
(2) on October 3, 2001, he was issued a seven-day suspension charging
him with unsatisfactory attendance, AWOL; and
(3) a white employee who does the same job as complainant receives
Level 5 pay whereas the complainant receives Level 4 pay.
The record reveals that on September 12, 2001, complainant filled out
two PS Forms 3189, (Request for Temporary Schedule Change for Personal
Convenience), for September 8 - 14, 2001 and September 15 - 18, 2001.
In each form, complainant requested that his scheduled off days of
Sunday/Tuesday be temporarily changed to Saturday/Sunday. The record
further reveals that a Manager, Distribution Operations approved
complainant's temporary schedule change request for September 8 - 14,
2001, but that he denied the request for September 15 - 18, 2001.
The record reveals that complainant did not report to work for the
September 14 - 15, 2001 shift but was nevertheless paid by the accounting
system for that day. The record further reveals that complainant reported
for a shift on September 15 - 16, 2001, and as a result, received 150
percent overtime, but was subsequently charged AWOL for missing September
14-15, 2001. The record reveals that on October 3, 2001, complainant was
issued a Notice of Seven-Day suspension as a discipline on a charge of
unsatisfactory attendance, i.e. AWOL. Furthermore, the record reflects
that before complainant's seven-day suspension went into effect, the
union and complainant's supervisor discussed a proposal that would allow
complainant to repay the overtime pay in exchange for the agency dropping
the AWOL charge and rescinding the seven-day suspension, and that would
have permanently changed complainant's off days to Saturday/Sunday.
Complainant did not agree to the compromise by the union and agency,
and instead served the seven-day suspension.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. During the hearing complainant withdrew the bases of age
and disability. Accordingly, only the bases of race, color and reprisal
were addressed by the AJ. The AJ concluded that complainant failed to
establish a prima facie case of race, color and reprisal discrimination
Furthermore, the AJ concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination or retaliation.
With respect to claims (1) and (2), the AJ found the issue of reporting
schedules on Tour 1 were confusing. The AJ determined, however, that the
accounting system counted complainant present on a day that he did not
report to work; and when complainant thereafter worked an additional day
in the pay period, the accounting system was triggered to determine that
complainant was entitled to overtime pay. The AJ determined that as a
result, the agency considered complainant AWOL for September 14-15, 2001.
The AJ noted while complainant's AWOL and seven-day suspension may be
considered harsh for a first offense, she would not second-guess the
agency's determination to issue such disciplinary action.
With respect to claim (3), the AJ concluded that the agency articulated
legitimate, non-discriminatory reasons for its actions. The AJ noted
that the agency explained that complainant and the white employee
identified in claim (3) were both limited duty employees who had modified
job assignments that were designed for their respective impairments;
and that they both maintained the same job level that they had prior to
their limited duty assignments. The AJ noted that complainant asserted
that one pay document in the Investigative File shows that at one time,
he was a Level 5 employee; however, the AJ found that complainant did not
produce the PS-50 form (which officially authorizes personnel changes)
to support his assertion that the agency officially assigned him as a
Level 5 employee; and the sole PS-50 in evidence shows that complainant
was a PS-4 employee in 2001. The AJ noted that complainant did not
contend that the work he was performing was classified �at that time�
as Level 5 job duties.
The agency's final action implemented the AJ's decision.
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ's findings of fact and her
determination that the agency articulated legitimate non-discriminatory
reasons for its actions that were not shown to be a pretext for
discrimination, are supported by substantial evidence in the record.
The Commission further determines that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's finding of
no discrimination. Therefore, after a careful review of the record,
we AFFIRM the agency's final action implementing the AJ's finding of
no 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
June 24, 2004
__________________
Date