01982077
04-07-2000
James D. Swanigan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/ Midwest Region) Agency.
James D. Swanigan v. United States Postal Service
01982077
April 7, 2000
James D. Swanigan, )
Complainant, )
) Appeal No. 01982077
v. ) Agency No. 4I680003597
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/ Midwest Region) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of religion (not cited), sex (male), and reprisal in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when he was
issued a notice of suspension for fourteen (14) days on November 12, 1996.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission affirms the FAD.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
he was discriminated against or retaliated against as referenced above.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a City Carrier PS-05, at the agency's Lincoln, Nebraska facility.
Complainant alleged that on May 20, 1995, he requested leave to go on a
church-sponsored canoe trip with his son. Complainant's supervisor,
Supervisor of Customer Services (RMO, male) denied complainant's
leave request. Despite the denial of complainant's leave request,
complainant did not report to duty and went on the canoe trip. As a
result, complainant was given a seven (7) day suspension for failure to
follow instructions.
Complainant alleges that this involvement with church and family lead
to various other acts of harassment, culminating in his November 12,
1996 suspension for fourteen (14) days. Management argues that time
wasting practices and failure to follow instructions lead to complainant's
fourteen (14) day suspension on November 12, 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently, filed a complaint on February 20, 1997.
The issue for investigation, as defined by the agency, includes
complainant's 14-day suspension and harassment. At the conclusion of
the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of retaliation. The FAD also concluded that complainant failed to
make a prima facie case of religion and sex discrimination.
FINDINGS AND ANALYSIS
A prima facie case of retaliation is established where complainant has
produced sufficient evidence to show that (1) he engaged in protected
activity; (2) the agency was aware of his participation in the protected
activity; (3) he was subjected to an adverse employment action; and
(4) a nexus exists between the protected activity and the agency's
adverse action. Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st
Cir. 1976); Van Druff v. Department of Defense, EEOC Appeal No. 01962398
(February 1, 1999). Complainant may also meet this burden by presenting
other evidence which raises an inference of discrimination. Potter
v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). The record
reveals that complainant has no prior EEO activity. Accordingly, the
agency was correct in finding no discrimination relative to complainant's
retaliation claim.
The complaints of religion and sex discrimination constitute claims
of disparate treatment and the agency properly analyzed them under
the three-tiered analytical framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See also St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981). The Commission's analysis need
not focus on the establishment of the prima facie case where, as here,
the agency has articulated a legitimate, nondiscriminatory reason for
its actions. Washington v. Dept. of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Applying these legal standards, the Commission finds that the agency
correctly determined that complainant failed to prove, by a preponderance
of the evidence, that he was discriminated against because of his sex
or religion. Complainant claimed, generally, that his managers were
biased against him because of his involvement in religious activity.
However, we agree with the agency that complainant submitted no persuasive
evidence to substantiate this contention. Moreover, complainant presented
no persuasive evidence that complainant's church involvement caused RMO
to deny his leave request, or to take any other adverse action against
complainant based upon such involvement.
We find no reason to believe that complainant was discriminated against
when RMO denied him leave to attend a church-sponsored canoe trip with
his son and later disciplined him for failing to follow instructions.
Complainant maintains that he made his leave request early and that others
have been allowed to take annual leave with less warning and for less
important reasons. However, complainant does not deny that management
appropriately approved leave requests for two other carriers, prior to
complainant's request for time off. Complainant does not deny that his
absence would leave his unit understaffed. Complainant also does not
deny that RMO warned him of the potential for a staffing shortage if he
did not report to his route. Complainant does not deny that he was fully
aware of the predicament his absence would cause and of the discipline
he would face. Complainant concedes that he decided to put his church
and family before his job. Complainant failed to show how denial of his
leave request was related to his religion or sex. Complainant also failed
to establish that his resultant suspension was related to sex or religion.
We also find no reason to believe that complainant was discriminated
against when he was issued a 14- day suspension. The record indicates
that complainant was issued the 14 day suspension when he disobeyed
instructions by writing trip numbers on parcels, visiting with fellow
carriers by leaving his case and otherwise using time wasting practices.
Complainant does not rebut the agency's contention that despite earlier
warnings, the Station Manager noticed him writing trip numbers on parcels
on three separate occasions. The record indicates that complaint
was among a group of carriers disciplined for writing route numbers
on parcels. Complainant argues that going on his church-sponsored
canoe trip, despite denial of his leave request, caused various acts of
harassment, including the 14-day suspension. Complainant indicates that
he was suspended because he wrote trip numbers on parcels, a practice
that complainant insists was part of his training. Complainant insists
that his suspension was nothing more than management's attempt to get
back at him for putting his church and family before the postal service.
We find complainant's allegation unsupported by the record. Therefore,
Complainant has also failed to establish that his 14-day suspension was
related to his sex or religion.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
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.