01984365
02-11-2000
Daniel Obradovich, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Daniel Obradovich v. United States Postal Service
01984365
February 11, 2000
Daniel Obradovich, )
Complainant, )
)
v. ) Appeal No. 01984365
)
William J. Henderson, ) Agency No. 4F-926-0031-98
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
____________________________________)
DECISION
Daniel Obradovich (complainant) filed an appeal with this Commission from
a final decision of the United States Postal Service (agency) 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> Complainant's claim of discrimination is
based upon retaliation (prior EEO activity), when on October 7, 1997 he
was issued a Notice of Removal. The appeal is accepted in accordance
with EEOC Order No. 960.001.
On December 23, 1997, complainant filed a formal EEO complaint claiming
discrimination as referenced above. Complainant's complaint was accepted
for processing. On February 23, 1998, following an investigation,
complainant requested a final agency decision without a hearing.
Thereafter, on April 23, 1998, the agency issued a final decision of no
discrimination. It is this agency decision which complainant now appeals.
The record indicates the following: Sometime during the spring of
1996, complainant wrote inappropriate letters to a female co-worker
(C1), which included statements such as, "I'd love to make a sexy
Indian Pregnant" and "by the way, I'd love to kiss that big mouth of
yours-French Kiss it." Disturbed by the letters, C1 notified management,
but did not want complainant to get into any trouble. In the spring of
1996, complainant was issued a letter of warning and instructed not to
have contact with C1. While disputed by complainant, agency officials
contended that in August, 1996, complainant arranged for a newspaper
clipping to be given to C1 which referenced a former postal employee
convicted of murder. On December 23, 1996, complainant wrote another
letter to C1. Complainant was then issued a 14-day Suspension.
As a result of complainant's continuing unacceptable behavior toward
C1, complainant was instructed to undergo a psychiatric examination.
An agency psychiatrist (P1) conducted a psychiatric examination
and recommended that complainant not return to work for sooner than
three months. P1 also noted that reevaluation would be necessary.
In addition, complainant was referred to two doctors (P2 and P3) for
continuing therapy. In a letter dated April 24, 1997, P2 and P3 assessed
that it is likely that complainant will continue to commit other errors of
judgement and display inappropriate actions. They also concurred with P1
that complainant's conditions are resistant to change even with treatment.
However, P2 and P3 recommended that complainant be allowed to return
to work. On May 8, 1997, P1 conducted a second evaluation of complainant
and referred to the medical records of P2 and P3. P1 provided the agency
with his written opinion that complainant is at an above average risk
for acting out in an inappropriate and potentially dangerous manner.
Consequently, P1 recommended that complainant was not fit for duty.
On May 29, 1997, the agency's Senior Area Medical Director (P4)
evaluated the doctors' reports and found that all the doctors agreed
that complainant had significant personality problems that would preclude
him from engaging in acceptable interpersonal relationships with fellow
workers or management. P4 added that medication or counseling would
not significantly alter his behavior. Lastly, P4 found that while
complainant's potential for violence is debatable, he is likely to act
in a disruptive manner in the future.
On June 24, 1997, complainant saw another physician (P5) who was chosen
by mutual agreement. P5 found complainant's ability to relate to others
to be very poor. P5 recommended that if complainant returns to work,
he should be assigned to a facility away from C1. On August 26, 1997, P4
conducted another evaluation of complainant and determined from all the
medical findings that it is highly unlikely that any psychotherapy will
alter complainant's status and that the potential for future repeated
behavior is great. Accordingly, P4 concluded that complainant is unfit
for postal employment.
Following P4's medical conclusions and recommendations, the agency
offered to reassign complainant. Complainant refused the reassignment
and, accordingly, was notified of his removal.
FINAL AGENCY DECISION
The agency determined that complainant failed to prove a prima facie case
of discrimination based on retaliation since he was unable to demonstrate
that he had been treated differently than similarly situated employees
outside his protected class. In addition, the agency found legitimate,
non-discriminatory reasons articulated by the responsible management
officials. Specifically, the agency found that the record evidence
indicated that complainant was sent for a psychiatric examination because
he sexually harassed a female co-worker and failed to discontinue contact
with her. Upon advice of the agency's psychiatrist, the agency decided
to require complainant to be reassigned away from C1. Since complainant
refused the reassignment, the responsible management officials determined
that they had no other choice but to remove complainant. Lastly, the
agency found that complainant failed to present sufficient evidence of
pretext or discriminatory animus.
ANALYSIS
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that complainant failed to present a prima facie case of discrimination,
but for reasons different from the agency. We find that complainant
failed to prove that he engaged in prior protected EEO activity.
Complainant alleges that due to his union grievance activities, his
supervisors retaliated against him by removing him from employment.
However, none of the grievances filed by complainant included any
allegation of discrimination. Accordingly, the union activity in
this particular case does not constitute protected activity and any
reprisal related to it cannot be remedied by the Commission. See Whipple
v. Department of Veteran Affairs, EEOC Request No. 05910784 (February
21, 1992).
Except as indicated above, we find, in all material respects, that the
agency accurately set forth the relevant facts and properly analyzed the
case using the appropriate regulations, policies, and laws.<2> On appeal,
complainant generally restates his version of the facts. However, since
complainant fails to address the dispositive issue which we find to be
his inability to prove his protected status and prima facie case, we
discern no basis to reverse the agency's finding of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
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). 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:
2/11/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2 We note that at no point herein did complainant allege that he was
discriminated against based upon a perceived disability. In any event
the record indicates that the agency acted properly based upon medical
evidence in the record and that complainant refused an offered reasonable
accommodation.