Dan F. Litchcock, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 7, 2000
01990102 (E.E.O.C. Apr. 7, 2000)

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.