01a03444
08-29-2000
Amadeo Vitanza, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Amadeo Vitanza v. USPS
01A03444
August 29, 2000
.
Amadeo Vitanza,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03444
Agency No. 1-H-326-1026-94
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405). The complainant alleged that he was discriminated against
on the bases of sex (male), national origin (Borigua) and retaliation
when on January 24 and February 3, 1994, he was charged with absence
without official leave (AWOL) and when on February 17, 1994, his work
hours were changed and he was required to go to an Employee Assistance
Program (EAP) Counselor.
The record reveals that during the relevant time, the complainant was
employed as a Supervisor, Maintenance Operations at the agency's Panama
City, Florida Processing and Distribution Center facility. Believing he
was a victim of discrimination, the complainant sought EEO counseling and
subsequently filed a formal complaint on May 13, 1994. At the conclusion
of the investigation, the complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. The complainant requested a
hearing, subsequently withdrew his request for a hearing and requested
that the agency issue a final decision.
In its FAD, the agency concluded that the complainant failed to show
a prima facie case of sex or national origin discrimination because he
failed to show that he was meeting the attendance requirements of the
agency or that other similarly situated employees were being treated
differently. The agency also found no record evidence to support the
complainant's nonspecific allegation regarding his schedule changes.
Specifically, the agency could find no evidence that his schedule had
ever been changed let alone twenty-two times as originally alleged.
As to the EAP counseling claim, the agency found that the complainant
failed to show that he was harmed with respect to a term or condition of
employment. Additionally, the agency found that the referral to an EAP
Counselor was not so severe or pervasive as to create a discriminatory
hostile work environment.
The agency further found that the complainant failed to establish a prima
facie case of discrimination based on retaliation because he failed to
show the agency's actions were taken because of his prior EEO activity.
Accordingly, the agency found that the complainant failed to prove that
he was the victim of intentional discrimination.
The complainant makes no arguments on appeal. The agency requests that
we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that the complainant failed to
establish a prima facie case of sex and national origin discrimination
because he did not identify any similarly situated individuals who were
being treated differently than he was. Moreover, even assuming that he
had shown a prima facie case of sex and national origin discrimination,
we find that he failed to show that the agency's articulated reasons
for its actions were a pretext.
The record discloses that the complainant was absent from the workplace
without official approval on January 24 and February 3, 1994. However,
we note that the record does contain evidence that the complainant called
the agency on January 24, 1994, from an airplane. The record does not
disclose any attempt by the complainant to complete the required leave
forms upon his return to the workplace, nor does the complainant offer
any explanation why he was absent from the workplace on February 3 or
why he did not fill out the required Form 3971s to account for either
of his absences.
A complete review of the record shows no evidence that the complainant
was subjected to any schedule changes. The record does contain evidence
that the complainant was required to go to an EAP Counselor because of
his behavior in a meeting with his supervisor and an anonymous phone
call from an individual who indicated that the complainant felt that
management was out to get him. The Commission has held that an employee
is not aggrieved by a referral to an EAP Counselor. See Phillips v. USPS,
EEOC Request No. 05880558 (October 27, 1988).
Accordingly, the Commission finds that the complainant was not
discriminated against on the basis of his sex or national origin.
With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those who
oppose such practices'. . . ." Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
The Commission has also set forth the criteria for reprisal cases,
as follows:
To establish a prima facie case of reprisal discrimination, the
complainant must show that (1) he engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity; (3)
he was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link . . . The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). "Generally, the Commission has held that
nexus may be established if events occurred within one year of each
other." Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
Finally, we note that Title VII protects a person "where the employee
has a reasonable, good faith belief that the challenged employment
practice violates Title VII, even if the belief is later found to be
mistaken. . . . The mistaken belief may be one of law or of fact."
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
Here, the complainant is a member of a protected group and suffered an
adverse action. The record discloses that the complainant had filed an
EEO complaint against the same management official within six months of
the filing of this complaint. Therefore, we find that the complainant
did show a prima facie case of retaliation. However, we find that the
agency articulated legitimate non-discriminatory reasons for its actions
as stated above. We further find that the complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
Therefore, after a careful review of the record, including the agency's
response, we AFFIRM the FAD.
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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 29, 2000
__________________
Date
1 On 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.