James L. Davis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionOct 29, 1999
01983597 (E.E.O.C. Oct. 29, 1999)

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