01983597
10-29-1999
James L. Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
James L. Davis, )
Appellant, )
) Appeal No. 01983597
v. ) Agency No. 4G730006397
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission 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,
as amended, 42 U.S.C. � 2000e et seq. Appellant alleges that he was
retaliated against for prior EEO activity when, on December 12, 1996, he
was issued a seven day suspension notice for unsatisfactory performance.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a City Letter Carrier, at the agency's Norman, Oklahoma postal
facility. Appellant indicates that in May 1996 he represented a co-worker
in an EEO matter which involved the supervisor (S) who issued the seven
day suspension notice at issue, and that he also had filed his own EEO
complaints naming S as a discriminating official. As a result of this
protected activity, appellant alleges that S retaliated against him by
issuing the seven day suspension notice, contending that the infraction,
allowing forwardable mail to remain in his carrier case, was minor and
inadvertent and did not warrant discipline of any kind.
Appellant sought EEO counseling and, subsequently, filed a complaint
on March 18, 1997. At the conclusion of the investigation, appellant
requested that the agency issue a FAD.
The FAD concluded that appellant failed to establish a prima facie case
of reprisal because he did not demonstrate a nexus between the protected
activity and S issuing the seven day suspension. Appellant makes no new
contentions on appeal, and the agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission has determined that it does not concur with the agency's
finding that appellant failed to establish a prima facie case of
reprisal. We note that appellant contends that he identified S as the
discriminating official in more than one previous EEO complaint, and
had represented a co-worker in an EEO matter involving S approximately
seven months before the seven day suspension notice was issued.
The agency does not challenge appellant's statement regarding his prior
EEO activity. Appellant also provides two co-worker statements, each
identically stating that S was �spending a lot of time� at appellant's
case �looking for something� in the first part of December 1996. It
is further opined that S might have been purposely searching for an
infraction committed by appellant to support disciplinary action against
him, presumably as reprisal for the prior EEO activity. Therefore,
given the frequency, and apparently on-going nature, of appellant's EEO
activities involving S, and the two co-worker statements, we conclude
that the required �time and manner� nexus is established, and that
appellant has shown a prima facie case of reprisal. See Hochstadt, supra.
However, the Commission further finds that appellant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. The agency contends
that appellant was issued the seven day suspension notice because
he had already received a Letter of Warning regarding mishandled
mail, and because his �negligent� mishandling of the mail resulted in
delayed delivery of the items mishandled. The agency also indicated that
appellant was a veteran letter carrier who was well acquainted with the
rules and regulations, and that his conduct in both these incidents
was unacceptable. A review of the record confirms that appellant had
received a Letter of Warning approximately one month prior to the seven
day suspension at issue, which also concerned unsatisfactory performance
for mishandling mail. Appellant does not dispute that he is responsible
for the infractions noted in both the Letter of Warning and the seven day
suspension notice. Therefore, we find that appellant's discipline was
appropriately progressive, and not arbitrary or unfounded. We also note
that the statements of the co-workers merely provide an observation that S
was looking around appellant's case, and that the reason suggested by them
and appellant is sheer speculation. Moreover, we note that several other
Letter Carriers where disciplined by S in the same manner for the same
or similar infractions around the same time as appellant. Furthermore,
we take note of appellant's statement in his affidavit where he suggests
that S issued the seven day suspension notice because he was trying to
establish an image as a tough supervisor for career enhancement purposes.
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
October 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations