Dennis Dacey, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01971923 (E.E.O.C. Oct. 8, 1999)

01971923

10-08-1999

Dennis Dacey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis Dacey v. United States Postal Service

01971923

October 8, 1999

Dennis Dacey, )

Appellant, )

) Appeal No. 01971923

v. ) Agency No. 5F-1271-92

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

On December 28, 1996, Dennis Dacey (hereinafter referred to as appellant)

initiated an appeal to the Equal Employment Opportunity Commission

(Commission) from a final decision of the agency concerning his complaint

of discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. The final agency decision

was received by appellant on December 2, 1996. Accordingly, the appeal

is timely, and is accepted in accordance with the provisions of EEOC

Order No. 960, as amended.

The issue on appeal is whether appellant proved, by a preponderance of

the evidence, that he was discriminated against in reprisal for prior

EEO activity when he was issued a letter of removal on May 20, 1992.

Appellant filed a formal EEO complaint in July 1992, raising the

above-referenced allegation of discrimination. The agency accepted

appellant's complaint for processing, and conducted an investigation.

Thereafter, the agency provided appellant with a copy of the investigative

report, and notified him that he had a right to request a hearing before

an EEOC Administrative Judge (AJ). In September 1993, the AJ remanded

the matter to the agency for processing as a mixed case complaint.

The agency, asserting that it never received the AJ's remand, subsequently

issued a final decision dated November 29, 1996. The agency initially

found that the complaint was no longer a mixed case, because appellant

had been reinstated, without backpay, pursuant to a June 1993 decision

of a Arbitrator. The agency then concluded that appellant failed to

prove his allegation of discrimination. It is from this decision that

appellant now appeals.

A review of the record reveals that appellant, a Special Delivery

Messenger, failed to deliver all of the pieces of mail he was given on

March 24, 1992. Appellant's supervisor (Responsible Official 1; RO1)

stated that of those items, 10 were "guaranteed delivery" which subjected

the agency to liability for refunds. RO1 indicated that she received

one customer complaint regarding a piece of mail which appellant failed

to deliver on time. RO1 stated that she attempted to reach appellant by

radio, which was to have remained on in his vehicle at all times, but

was unable to contact him for two hours. RO1 indicated that appellant

became agitated and loud when she asked him to accompany her to check his

radio after he returned, and threatened to have her arrested. RO1 stated

that appellant then failed to answer questions about the incident or

cooperate with an investigation. RO1 stated that she and a co-worker

made simulated runs of the items given to appellant on March 24 and were

able to deliver all pieces in less time than appellant was on the route.

Appellant asserted that he was not trained on the use of the radio or

given instructions to remain in constant contact. Appellant stated

that another Carrier was out of radio contact for over one hour, but

was not disciplined. The Carrier confirmed appellant's contention.

Appellant noted that he did not refuse to answer questions regarding

his actions, but asked that the questions be submitted to his attorney

in writing. Appellant also disputed RO1's assertions concerning the

number of items he received on March 24. The Arbitrator, however, noted

that appellant acknowledged returning 10 pieces of mail to the facility.

Appellant was issued a notice of proposed removal on April 20, 1992,

charging him with failure to follow instructions; unsatisfactory work

effort; unacceptable conduct; and impeding the efficiency of agency

operations. Appellant was ultimately terminated effective May 25, 1992.

The Arbitrator determined that the charges were valid, and that a severe

disciplinary action was warranted. The Arbitrator instructed the agency

to reinstate appellant to a probationary position without backpay.

The Commission initially notes that issues concerning termination are

usually under the jurisdiction of the Merit Systems Protection Board

(MSPB). However, the Commission finds that in this case it would delay

justice and create unnecessary procedural complications to remand the

matter to the MSPB. Accordingly, the Commission will address the merits

of appellant's claim of discrimination. See Harrell v. Department

of the Army, EEOC Request No. 05940652 (May 24, 1995); Simon v. USPS,

EEOC Request No. 05890464 (September 27, 1990).

Appellant's complaint presents the issue of whether the agency subjected

him to disparate treatment on the basis of his prior EEO activity.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an

analytical framework for proving employment discrimination in cases

in which disparate treatment is alleged. These same standards apply

to complaints of reprisal. See Burrus v. United Telephone of Kansas,

Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

First, appellant must establish a prima facie case by presenting enough

evidence to raise an inference of discrimination. McDonnell Douglas,

supra, at 802. The agency may rebut appellant's prima facie case by

articulating legitimate, nondiscriminatory reasons for its action, and

if the agency does so, appellant must show, by a preponderance of the

evidence, that the agency's reasons are a pretext for discrimination.

Id.

The Commission notes that the McDonnell Douglas analysis need not

be adhered to in all cases. In appropriate circumstances, when the

agency has established legitimate, nondiscriminatory reasons for its

employment decision, the trier of fact may dispense with the prima

facie inquiry and proceed to the ultimate stage of the analysis,

that is, whether the complainant has proven by preponderant evidence

that the agency's explanations were a pretext for actions motivated

by prohibited discriminatory animus. See United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711 (1983).

In the case at hand, the agency stated that appellant failed to deliver

a number of pieces of mail on the date in question and failed to follow

instructions regarding maintaining contact with the facility. Further,

the agency stated that appellant then engaged in a confrontation

with his supervisor and failed to cooperate with an investigation.

Appellant asserted that one individual failed to maintain radio contact

for over one hour and was not disciplined; however, there is no evidence

that the named individual failed to deliver mail or was involved in a

confrontation with a supervisor. We find appellant's general contention

that others were not disciplined for failing to follow instructions to

be unpersuasive, as appellant has presented no specific information

to support such a conclusion. Therefore, the Commission finds that

appellant failed to prove, by a preponderance of the evidence, that he

was subjected to reprisal discrimination with regard to his termination.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Commission to affirm the agency's final decision of

no discrimination based on reprisal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 8, 1999

DATE Carlton M. Hadden

Acting Director

Office of Federal Operations