01990102
04-07-2000
Dan F. Litchcock, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dan F. Litchcock v. United States Postal Service
01990101
April 7, 2000
Dan F. Litchcock, )
Complainant, )
) Appeal No. 01990101
v. ) Agency No. 1A-126-0061-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 3, 1998, the complainant initiated a timely appeal from a
September 23, 1998 final agency decision concerning his complaint of
unlawful discrimination based on reprisal (prior EEO complaints) in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e, et seq. Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405), the Commission accepts the
complainant's appeal.<1>
The complainant alleges he was discriminated against in reprisal for
prior EEO activity when on March 11, 1997, he was issued a letter of
warning for a physical and verbal assault against an agency employee and
that the letter of warning falsely indicated that he had pled guilty
to the assault charge and also falsely indicated that the agency was
contacted by the Court regarding the outcome of the assault charge.
In its final decision, the agency found no discrimination, noting therein
that it had articulated legitimate, nondiscriminatory reasons for its
actions in issuing the letter of warning. The agency specifically noted
that the complainant was issued a letter of warning as a result of the
altercation and that the investigation of the incident conducted by the
Postal Inspection Service disclosed that the complainant had entered a
guilty plea in the Court.
The record reveals that the complainant was involved in a physical and
verbal altercation with an agency employee at work on April 10, 1996.
The incident was reported to management an investigation was conducted.
In a supplemental investigative memorandum, the Postal Inspection Service
informed the Plant Manager that on September 23, 1996, the complainant
pled guilty to attempted assault and was sentenced to an adjournment
and, as such, if there were no further incident, the complainant's
conviction would be expunged. By letter of warning, dated March 7,
1997, the complainant was issued a letter of warning by the agency.
The letter of warning noted that the complainant had violated the agency
policy against workplace violence and had engaged in conduct prohibited
in the Employee and Labor Relations Manual (ELM). The letter of warning
referenced the guilty plea.
The complainant has the initial burden of proving, by a preponderance
of the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; then the complainant must prove, by a
preponderance of the evidence, that the legitimate reasons offered by the
employer were not its true reasons, but were a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Although 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,
i.e., the assault by the complainant and information provided during the
investigation by the Postal Inspection Service. 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. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-13 (1983).
After a careful review of the record, the Commission finds that the
complainant failed to establish, by a preponderance of the evidence,
that the legitimate reasons offered by the agency for its actions were not
its true reasons, but were a pretext for discrimination. The complainant
failed to produce any evidence that the agency's actions in issuing the
letter of warning or the contents provided in the letter of warning were
taken for retaliatory reasons. Moreover, other than his assertions,
the complainant has not shown that the information regarding the guilty
plea was indeed false.
It is the decision of the Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that reprisal occurred.
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 7, 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.