0120080510
01-15-2008
Andy L. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andy L. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080510
Agency No. 1G-758-0015-06
DECISION
On October 17, 2007, complainant filed an appeal from the final agency decision concerning his equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Laborer Custodial at the agency's East Texas Processing and Distribution Center in Tyler, Texas.
On October 26, 2006, complainant filed a formal complaint. Therein, complainant claimed that he was discriminated against on the bases of race, sex, color, and in reprisal for prior protected activity when on September 15 and 21, 2006, he was denied out-of-schedule premium pay.1
On March 19, 2007, the agency issued a final decision. Therein, the agency dismissed the instant formal complaint on the grounds that complainant elected to file an appeal with the MSPB. On appeal, the Commission reversed the agency's dismissal of the claim and remanded it to the agency for further processing. Smith v. USPS, EEOC Appeal No. 0120072507 (August 8, 2007).
Following the investigation of the subject claim, 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). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant did not prove that he was subjected to discrimination as alleged.
On October 11, 2007, the agency issued the instant final decision. Therein, the agency found that complainant did not establish a prima facie case of discrimination on the bases of race, color, sex or reprisal. The agency further found that assuming that complainant established a prima facie case of discrimination, management articulated legitimate, nondiscriminatory reasons for the denial of out of schedule pay. The agency further found that complainant did not show that the agency reasons were pretextual.
The agency stated that complainant was the successful bidder on a Tour 2 Maintenance position effective July 8, 2006. Subsequently, complainant was notified that he had the option to fill a custodial job position under the provisions of the Uniformed Services Employment Rights Act (USERRA), or that he could choose to remain in his current position. The record reflects that complainant elected to stay in his current position and his seniority date was adjusted to December 2003.
Management officials attested that complainant was not entitled to out of schedule pay because he did not choose to take the first of the two options identified above: the position under the provisions of USERRA. Management noted that complainant raised the above issue under the grievance procedure which determined at Steps 1 and 2 that complainant was not entitled to out of schedule pay. The agency also noted that a Step 3 agreement followed between management and the union which set forth that complainant was not entitled to out of schedule pay based on the provisions of the Collective Bargaining agreement.
A claim of disparate treatment is examined under the three-party 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 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 agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not proven, by a preponderance of the evidence, that the agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final 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
January 15, 2008
__________________
Date
1 The agency identified the dates of the alleged denial as September 15 and 21, 2006. However, the agency noted that complainant continuously sought out-of-schedule premium pay from January 8, 2005 to July 8, 2006.
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0120080510
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080510