01970978
10-06-1999
James C. Milford, Appellant, v. Wiliam J. Henderson, Postmaster General, United States Postal Service, Agency.
James C. Milford v. United States Postal Service
01970978
October 6, 1999
James C. Milford, )
Appellant, )
)
v. )
) Appeal No. 01970978
Wiliam J. Henderson, ) Agency No. 1-G-772-1316-95
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in reprisal for having engaged in EEO related activity in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The appeal is accepted by the Commission in accordance with the
provisions of EEOC Order No. 960.001. For the reasons set forth below,
we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented is whether appellant proved that he was discriminated
against, as referenced above, when his pay was less than it should have
been for pay periods 1-95 and 2-95, and there was a delay in processing
his pay adjustments.
BACKGROUND
Appellant filed his formal complaint on March 16, 1995. Following an
investigation, he was provided with a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). Appellant initially requested a hearing, but he withdrew
that request on February 19, 1996. The agency conducted a supplemental
investigation in April 1996, and issued a final decision on October
4, 1996. The agency found that appellant had not been subjected to
discrimination based on reprisal. It is from this decision that appellant
now appeals. Appellant did not offer any new contentions on appeal.
According to his testimony, appellant did not receive the full amount
of pay that he was entitled to for pay periods 1-95 and 2-95, that
is, January 13 and 27, 1995. The record indicates that he did not
receive 1.41 hours of higher level pay in pay period 1-95 and 53.68
hours of night differential pay for pay period 2-95. Appellant accused
management of intentionally miscalculating his hours and of delaying the
processing of his pay adjustments as a form of harassment and reprisal.
According to appellant, management took these actions because of his
participation, as a witness and a complainant, in a well known, local
EEO case. According to appellant, "all N. Houston managers are aware of
[the] case and my statement as a witness . . . ." Appellant also alleged
that his immediate supervisor, A-1, Supervisor, Distribution Operations,
and A-2, Manager, Distribution Operations, and all agency managers and
officers were responsible for his pay problems because they knew how to
process a pay adjustment in a timely and proper manner, but did not.
Finally, appellant maintained that as of the date of his testimony,
July 5, 1995, the matter had not been resolved.
Both A-1 and A-2 testified that they were not involved with appellant
receiving less pay than he was entitled to and the subsequent delays in
processing his pay adjustments. The record also contains the testimony of
B-1, General Supervisor, Pay and Distribution Center located in Houston,
Texas. B-1 indicated that appellant's work hours were correctly entered
on the time certification reports; however, due to a system error at
the Postal Data Center in Minneapolis, the total amount of his hours
were not reflected on his checks. According to B-1, his office was not
responsible for what happened.
With regard to the processing of appellant's pay adjustment forms,
B-1 indicated that it took until pay period 5-95 for his office to
process the request. He noted that once a pay adjustment request form
is received, it had to be reviewed for accuracy. Appellant's forms, he
noted, were received on February 1, 1995. He also indicated that due to
the number of pay adjustments that are processed daily, the Accounting
Department has a large backlog. Once the Accounting Department completed
its work, the forms were forwarded to Minneapolis for final processing.
Although B-1 did not testify about appellant's pay adjustment requests
after they were forwarded to Minneapolis, the record contains a copy
of a pay statement for pay period 5-95 in the amount of $1883.72.
A handwritten notation on the copy indicates that: "multiple
adjustments for pps 01&02/95 in the amount of 832.12 processed in pp
05/95." (Exhibit 10). We also note a June 5, 1995 memorandum written to
B-1. The memorandum, apparently written by an employee of the Accounting
Department, indicates, in pertinent part, that "adjustments will be
on next pay period." A handwritten notation states: "this adjustment
was processed in pp 12/95 in the amount of $91.32 . . . ." (Exhibit
9). Finally, B-1 testified that he was not aware of appellant's prior
EEO activity.
ANALYSIS AND FINDINGS
At the outset, we note that the agency found that appellant did not
establish a prima facie case of reprisal discrimination because B-1 was
not aware of his EEO activity and that he failed to establish that "but
for" his EEO activity he would not have been subjected to the adverse
action. We find that the agency erred. A prima facie case of reprisal
is established by showing that: (1) an employee engaged in protected EEO
related activity; (2) the employer was aware of the protected activity;
(3) the employee was subsequently subjected to adverse treatment; and
(4) the adverse action followed the protected activity within such a
period of time that retaliatory motivation may be inferred. Manoharan
v. Columbia University College of Physicians and Surgeons, 842 F.2d 590,
593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987);
McKenna v. Weinberger, 729 F.2d 783, 790, (D.C. Cir. 1984).
A fair reading of appellant's allegations indicate that A-1 and A-2
were aware of his EEO activity. They were also two of the individuals
whom he accused of miscalculating his hours and delaying his pay
adjustments. Therefore, B-1's lack of knowledge, in itself, does
not prevent appellant from establishing that the agency was aware of
his EEO activity. Furthermore, contrary to the agency's position,
appellant need only establish that the adverse action followed the
protected activity within such a period of time that a retaliatory
motivation may be inferred. By requiring appellant to establish that
"but for" his EEO activity the adverse action would not have occurred,
the agency has imposed a burden that is not required. However, since the
agency's finding of no discrimination was not based solely on appellant's
inability to establish a prima facie case, we find that the agency's
errors were harmless.
With respect to the appellant's allegation of discrimination, we find
that the agency articulated legitimate, nondiscriminatory reasons for why
his pay was less than it should have been for pay periods 1-95 and 2-95,
and for the delay in processing his pay adjustments. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976)(applying the standard to retaliation
cases); and United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). We further find that appellant has not
established that B-1's testimony was pretextual. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, we
find appellant has not established discrimination based on reprisal. We
also find that, other than his bare assertion that A-1, A-2 and all agency
managers and officers were responsible due to a desire to retaliate
against him, appellant presented no persuasive evidence that his EEO
activity played any role in this matter.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
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. �1614.604(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. 06, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations