Alberto Chin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01990020 (E.E.O.C. Apr. 11, 2000)

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.