01992275
08-10-2001
James J. Christopher v. United States Postal Service
01992275
August 10, 2001
.
James J. Christopher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01992275
Agency No. 4E-990-0011-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that he was discriminated against
on the basis of reprisal (prior EEO activity under Title VII) when:
(1) on September 16, 1997, a supervisor (S1) stopped him from talking
while allowing others to continue talking;
on September 17, 1997, S1 made a negative statement about him; and
on October 29, 1997, S1 made a negative statement about him.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that during the relevant time, complainant was employed
as a Mailhandler at the agency's Boise Main Office facility in Idaho.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on January 15, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. The agency, in a
final agency decision dated December 30, 1998, found no discrimination.
It is from this decision that complainant appeals.
In its FAD, the agency concluded that complainant failed to prove a prima
facie case of reprisal discrimination. Specifically, the agency found
that although complainant is a member of a protected group, he did not
show that he was treated differently than similarly situated employees
not within his protected group.
On appeal, complainant contends that the agency applied the wrong
standard. Specifically, complainant notes that the agency's basis
for determining that he failed to establish a prima facie case of
reprisal was based on the fact that he was did not show that he was
treated differently than similarly situated employees not within his
protected group. The agency requests that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). The record evidence establishes that S1 instructed
complainant to leave the Register Room and return to his proper work area
in an attempt to maintain the efficiency of the operations entrusted to
him. The undisputed evidence also shows that, unlike complainant, the
other employees were not instructed to leave the Register Room because
they were Letter Carriers and they had business to conduct there.
Because we find that the agency has articulated a legitimate,
nondiscriminatory reason for its treatment of complainant, the inquiry
shifts to complainant to show by a preponderance of the evidence that the
agency's reasons for its actions were merely a pretext for retaliatory
motive. Id.; see also United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 714-717 (1983). Complainant reiterates that
S1 selectively enforced a �no talking policy� by singling him out to
cease talking and return to work. Under these circumstances, we are
not persuaded that complainant has shown that more likely than not,
the agency's articulated reason was pretext for a retaliatory motive
since complainant does not refute the evidence of record that their was
no work-related reason for his presence in the Register Room.
The Commission also finds that complainant has presented no evidence
that two, apparently isolated, negative statements by his supervisor
constitutes adverse treatment. We note that complainant neither provides
essential information regarding the content of these statements nor states
to whom the statements were allegedly made. Based on the foregoing,
we find that complainant failed to show that the agency discriminated
against him on the basis of reprisal.
Therefore, 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 (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2001
__________________
Date
1 While the Commission reaches the same result as the agency in the
instant case, we note that the agency's analysis in determining whether
complainant has established a prima facie case of reprisal discrimination
is not correct. Specifically, the agency found that complainant failed
to establish that he was treated differently than similarly situated
employees not within his protected class. A complainant establishes a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).