James P. Pedrazzoli, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01970709 (E.E.O.C. Jan. 24, 2000)

01970709

01-24-2000

James P. Pedrazzoli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.


James P. Pedrazzoli v. United States Postal Service

01970709

January 24, 2000

James P. Pedrazzoli, )

Complainant, )

)

v. )

) Appeal No. 01970709

William J. Henderson, ) Agency No. 4-H-327-1005-96

Postmaster General, )

United States Postal Service )

(S.E./S.W. Region), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of physical disability (lower back pain) and in retaliation for

prior EEO activity, in violation of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges that he

was discriminated against when he was issued a Letter of Warning.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

BACKGROUND

The record reveals that during the relevant time period, complainant

was employed as a Letter Carrier at the agency's Vero Beach, Florida

Post Office. On July 29, 1995, in the course of delivering his mail

route while carrying an unusually heavy shoulder bag, complainant injured

his back. According to the agency, before complainant had begun his

route on that day, complainant's supervisor had instructed him not to

use a shoulder bag. Rather, so as to avoid strain on complainant's back,

the supervisor instructed complainant to carry smaller amounts of mail in

his hands. According to complainant, his supervisor gave no such order

with respect to use of the shoulder bag. On September 18, 1995, the

agency issued complainant a Letter of Warning charging him with "failure

to follow instructions" by disregarding his supervisor's instructions

to avoid use of a shoulder bag thereby causing injury to himself.

Believing himself to have been a victim of discrimination, complainant

sought EEO counseling and, subsequently, filed a complaint on November

15, 1995. At the conclusion of the investigation, complainant did not

request a hearing. Thereafter, the agency issued a final agency decision.

The FAD concluded that complainant failed to establish a prima facie case

of disability discrimination because he presented no evidence that his

physical condition substantially limited him in a "major life function."

The FAD also concluded that complainant failed to establish a prima

facie case of retaliation because he did not prove a causal connection

between his prior EEO activity and the contested agency action.

From the FAD, complainant brings the instant appeal. The agency requests

that we affirm its FAD.

ANALYSIS AND FINDINGS

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981),

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), 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 finds that complainant

failed to prove, by a preponderance of the evidence, that the agency's

articulated reasons for its actions were a pretext for discrimination

or retaliation.<2>

In reaching this conclusion, we find, complainant's statement to the

contrary notwithstanding, that he was instructed to avoid the use of

the shoulder bag. In this connection we note that the record contains

detailed statements both by the supervisor and by one of complainant's

co-workers, establishing that complainant had been instructed to avoid

use of the shoulder bag.

CONCLUSION

Therefore, after a careful review of the record, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 (3O) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (2O) 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). 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:

1/24/00

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:

1/24/00

Date ________________________

Equal Employment Assistant

1On 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.

2Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary where, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions, i.e.,

complainant's failure properly to follow his supervisor's directions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether he has demonstrated by a

preponderance of the evidence that the agency's reason for its actions

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).