01990020
04-11-2000
Alberto Chin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Alberto Chin v. United States Postal Service
01990020
April 11, 2000
Alberto Chin, )
Complainant, )
)
v. ) Appeal No. 01990020
William J. Henderson, ) Agency No. 4-H-330-0105-97
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White) and reprisal (prior EEO activity) in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges he was discriminated against when
he was issued a 14-day suspension. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Miami Beach facility.
On October 8, 1996 complainant requested "auxiliary assistance" in
delivering his route. His request was granted. Part of his route was
assigned to another carrier and he was permitted two additional hours
to complete the remaining portion of his route. When later that day
complainant left his route early because of illness, substitute carriers
were assigned to deliver the parts of his route he had not completed.
Those carriers completed the route in less time than complainant had
indicated he would have required. The agency concluded from this that
complainant had knowingly requested more auxiliary assistance than was
necessary to complete his route. As a result complainant was issued
a notice of 14-day suspension, charging him with failure to meet the
requirements of his position.
Believing himself to be a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on May 5, 1997. At
the conclusion of the investigation, complainant did not exercise his
right to a hearing before an EEOC Administrative Judge. Accordingly,
the agency issued a final agency decision on the basis of the record
of investigation.
The FAD concluded that complainant failed to establish a prima facie
case of race-based discrimination because he presented no evidence
that similarly situated individuals not in his protected classes were
treated differently under similar circumstances. With respect to the
claim of retaliation, the FAD found complainant had failed to prove his
claim because he adduced no evidence that "but for" complainant's prior
protected activity, he would not have been disciplined for his actions.
From the FAD, complainant brings the instant appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission finds that the agency articulated legitimate, nondiscriminatory
reasons for its actions, i.e., that complainant had deliberately
misrepresented the amount of time required to complete his route.
We further find that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination.<2> In reaching this conclusion, we note
that complainant offers nothing more than his own speculation to support
his claim of discriminatory animus.
With respect to his claim of retaliation, we note that on at least
two prior occasions, complainant had been disciplined for deficient
performance of his duties and had received progressively more severe
punishments. The discipline imposed for the incident immediately
preceding the incident here in question was a 7-day suspension.
These facts contradict complainant's assertion that he was punished
disproportionately in retaliation for his prior protected activities.
The discipline appears to be proportionate and does not support an
inference of retaliatory motivation. Therefore, after a careful review
of the record, we affirm the FAD.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
3We note that there is contained in the record on appeal a document
entitled "Pre-Arbitration Settlement" which appears to reflect a
resolution of the claim raised by complainant in this case. The agency
has not raised this settlement as a bar to this matter, perhaps because it
was executed by a union representative and not by complainant personally.
Nor does complainant assert any claim that the agency has breached
the agreement. Neither party having raised any issue related to the
apparent grievance settlement, we do not further address it.