0120083175
09-25-2008
Ryan A. DiFranco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ryan A. DiFranco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083175
Agency No. 4H-327-0130-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 12, 2008 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.
During the period at issue, complainant was employed as a City Carrier
at the agency's Delray Beach, Florida Post Office.
On July 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (Caucasian), sex (male), and in reprisal for prior
EEO activity when:
(1) since May 2007 and continuing, management has failed to complete his
insurance forms and as a result failed to pay Continuation of Pay (COP);
(2) on June 12, 2007, he received a notice that his step increase will
be deferred; and
(3) on June 27, 2007, he was issued a Letter of Demand.
The record reflects that complainant submitted two requests dated August
4, 2007 requesting that the following claims be amended to the instant
formal complaint1:
(4) on July 3, 2007, he received five Time and Attendance Pay Adjustment
Certifications with no explanation; and
(5) on July 25, 2007, management violated the release of his medical
records and also violated 20 C.F.R. 10.506.
On August 8, 2007, the agency issued a document titled
"Acknowledgment/Dismissal of Amendment." The agency granted complainant's
request to have his formal complaint amended to include claims (4) -
(5). The agency, however, dismissed claims (4) - (5) pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
The record further reflects that complainant submitted another request
dated September 13, 2007, requesting that the following claim be amended
to the instant complaint2:
(6) on August 16, 2007, he received PS Form 3239, Payroll Deduction
Authorization to Liquidate Postal Service Indebtedness.
On September 21, 2007, the agency issued a document titled
"Acknowledgment/Dismissal of Amendment." The agency granted complainant's
request to amend his formal complaint amended to include claim (6).
The agency, however, dismissed claim (6) for stating the same claim that
is pending before or has been decided by the agency or the Commission
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency also dismissed claim
(6) on the alternative grounds of failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1).
At the conclusion of the investigation concerning claims (1) - (3),
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). Complainant requested a hearing but subsequently withdrew his
request in favor of a final agency decision. The agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
In its June 12, 2008 final decision, the agency found that complainant
failed to establish a prima facie case of race, sex and reprisal
discrimination because he did not show that similarly situated individuals
outside of his protected classes were treated more favorably under
similar circumstances. The agency found assuming, for the sake of
argument only, complainant established a prima facie case of race,
sex and reprisal discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext for discrimination.
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 Manager, Customer Services (M1) stated that in regard to claim
(1), she received complainant's insurance forms and sent it to the
District Injury Compensation Office. M1 stated that when employees
have an on-the-job injury "we forward all information to the District
Injury Compensation office for completion and for them to forward on to
the company." M1 stated that she does not recall the day she received
complainant's insurance forms "however I sent the same day I received it.
The form was completed by the injury compensation office by [identified
agency employee]." M1 stated that she had no involvement with the
decision making concerning complainant's COP, and that the decision was
made by the District Injury Compensation Office.
The Postmaster stated that complainant was paid 21 hours of COP for
"pay period 6 week 2, pay periods 7 week 1 and 2 and pay period 8 and
week 1 and 2. The Adjustments was completed 7/2/2007 by me. I was
instructed by Injury Compensation to complete the adjustment based on
the medical documentation received from OWCP provided by his Doctor."
The Postmaster further stated "it should be noted based on his medical
documentation he could have worked partial days however [Complainant]
did not report for work so he was only paid for the time his physician
stated he was unable to work."
The record contains a copy of complainant's insurance form dated May 15,
2007. Therein, an identified Injury Compensation Office representative
completed the form and sent it to the Assurity Life Insurance Company.
The record also contains a copy of the Human Resource and Management
Specialist's email dated November 9, 2007. Therein, the Human Resource
and Management Specialist stated that he contacted the insurance company
and received a confirmation that the company received complainant's
insurance form on May 18, 2007.
Regarding claim (2), the record reflects that complainant received
a letter dated June 12, 2007 from Human Resources in Greensboro,
North Carolina. Therein, Human Resources notified complainant that in
accordance with Section 422.33 "Leave Without Pay" of the Employee and
Labor Relations Manual (ELM), he accumulated at least 13 weeks of Leave
Without Pay which falls during the waiting period for receipt of his next
periodic step increase, therefore his step increase would be deferred.
The record contains a copy of Section 422.133 of the ELM. Therein,
Section 422.13 states "the following provisions apply: a. When an
employee has been on LWOP for 13 weeks or more during the waiting period
for receipt of a periodic step increase and has not been on military
furlough, on the rolls of the Office of Workers' Compensation Programs,
or on official union business, the scheduled date for the employee's
next step increase is deferred as follows:
Total Weeks LWOP Pay Periods Deferred
0 to less than 13..................No deferment
13 to less than 26................7
26 to less than 40............... 13
40 to less than 52...............20
52.................................26
More than 52.....................One pay period for each 2 weeks
of LWOP."
Regarding claim (3), the Postmaster stated that she issued complainant a
letter of demand for $158.40 for back payment for his health insurance.
The Postmaster further stated that when employees are out of work for
extended periods, the agency will continue to pay their health insurance
benefits; and that the Disbursing Officer Accounting Service Center "will
then send a letter to the Postmaster requesting payment from the employee
for their portion of health benefits." The Postmaster stated that in
the instant case, she received an invoice "requesting the office that the
employee works in collect the insurance benefits that the employee owes.
Employees that have not returned to work are mailed a letter with
my signature requesting full payment of these funds." Moreover, the
Postmaster stated "I have issued many letters of demands to employees
within my responsibility since I become Postmaster Delray Beach."
In this case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
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.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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 25, 2008
Date
1 For purposes of clarity, the Commission has numbered complainant's
amended claims as claims (4) - (5).
2 For purposes of clarity, the Commission has numbered complainant's
amended claim as claim (6).
3 On appeal, complainant does not challenge the August 8, 2007 and
September 21, 2007 partial dismissals issued by the agency regarding
claims (4) through (6). Therefore, we have not addressed these issues
in our decision.
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0120083175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083175
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