01970833
10-03-2000
James P. Pedrazzoli, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
James P. Pedrazzoli v. United States Postal Service
01970833
October 3, 2000
James P. Pedrazzoli, )
Complainant, )
) Appeal No. 01970833
) Agency No. 4H-327-1364-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On October 31, 1996, James P. Pedrazzoli (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated October 7, 1996, 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.,
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> The Commission hereby accepts the appeal in accordance with
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on disability (lower back injury) and retaliation (prior EEO
activity) when he was assigned additional deliveries and his supervisor
gave false testimony on his injury form.
BACKGROUND
Complainant was a Letter Carrier at the Vero Beach Post Office,
Vero Beach, Florida. He filed a formal complaint on October 14,
1995, alleging discrimination on the bases of disability (lower back)
and retaliation (prior EEO activity) when: 1) on July 29, 1995, he was
assigned additional deliveries; and, 2) on July 31, 1995, his supervisor
gave false testimony on his injury form for the Office of Workers'
Compensation Programs (OWCP). The agency accepted the complaint for
investigation and processing. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of his right to request an administrative hearing. After complainant
failed to request a hearing, the agency issued its FAD on October 7,
1996.
In its FAD, the agency found that the complainant had failed to
establish a prima facie case of disability discrimination because he
did not prove that he was an "'individual with a disability' who had a
permanent physical impairment that substantially limited one or more of
[his] major life activities," or that he was regarded as having such
an impairment. According to the FAD, the complainant provided the
agency with documentation of his "service-connected compensation," but
had not provided proof that he had a permanent impairment that limited
a major life activity, nor was there any record of his submission of
medical documentation listing any work restrictions. The FAD further
stated that complainant had failed to establish a prima facie case of
retaliation because he had not shown that he had suffered an adverse
employment action following his participation in a protected activity,
and had not shown a causal connection between his EEO activity and being
assigned the additional deliveries. Complainant also failed to show that
the legitimate, nondiscriminatory reasons articulated by the agency for
its actions were a pretext for discrimination. The complainant filed
this appeal, without comment.
ANALYSIS AND FINDINGS
Allegation 2 of complainant's complaint stated that on July 31, 1995,
his supervisor gave false testimony on the injury form for his OWCP
claim. This apparently caused OWCP to "drop" complainant's Workers'
Compensation case. The Commission has held that an employee cannot
use the EEO complaint process to lodge a collateral attack on another
proceeding. Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request
No. 05930106 (June 24, 1993). A collateral attack involves a challenge
to another forum's proceeding, i.e., the grievance process, the EEO
process in a separate case, the unemployment compensation process, the
workers' compensation process, the tort claims process, and so forth.
See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October
18, 1996); Fisher v. Department of Defense, EEOC Request No. 05931059
(July 15, 1994). The proper forum for complainant to raise challenges
to actions which occurred during and as a consequence of the workers'
compensation process is in that process itself. We find that allegation
2 of complainant's complaint constitutes a collateral attack on the
workers' compensation process. Therefore, complainant has failed to
state a claim under 29 C.F.R. � 1614.107(a)(1), and allegation 2 is
dismissed on this basis.
Complainant alleged disparate treatment when he was assigned additional
duties on July 29, 1995. A claim of disparate treatment is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For purposes
of this analysis, we will assume that complainant is an individual with
a disability. See, 29 C.F.R. �1630.2(g).<2>
To establish a prima facie case of reprisal, a complainant must show that:
1) he was engaged in protected activity; 2) the responsible official was
aware of the protected activity; 3) the complainant was subsequently
subjected to adverse treatment; and 4) the adverse action followed
the protected activity within such a period of time that retaliatory
motivation may be inferred. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University College
of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn
v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department of Labor,
EEOC Request No. 05940764 (December 15, 1994).
The record reveals that complainant was engaged in protected EEO activity
and had participated in an EEO hearing three days prior to being assigned
additional delivery duties on July 29, 1995. The management official
responsible for assigning complainant the additional delivery duties
had also testified at the same EEO hearing, and had been named as the
discriminating official by complainant in his previous three EEO cases.
Complainant was assigned to make deliveries on another route in addition
to completing his usual route, and this occurred within three days
of an EEO hearing held on complainant's other EEO cases. Therefore,
complainant has established a prima facie case of retaliation.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
The agency argued that the responsible management official had assigned
complainant the additional delivery duties because complainant was on
the "overtime desired list," which indicated that complainant wished
to be assigned overtime and work up to 12 hours a day. The management
official stated that complainant had the least amount of overtime hours
earned at that point in time (other than another carrier who was out
on sick leave) and that he was trying to make the overtime hours more
equitable, as required by the collective bargaining agreement between
the union and the agency.
Complainant failed, however, to overcome the legitimate, nondiscriminatory
reason given by the agency for assigning him the additional delivery
duties. The complainant did not show that it was a pretext for
discrimination. Therefore, complainant has not proven that he was
subjected to discrimination based on reprisal.
Accordingly, for the reasons stated above, the decision of the agency
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
10-03-00
Date Carlton M. Hadden, 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 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 29 C.F.R. �1614, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2 The October 1992 amendments to the Rehabilitation Act provide that the
standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans With Disabilities Act (ADA). 29 U.S.C. � 791(g).
The regulations at 29 C.F.R. � 1630 implement the equal employment
provisions of the ADA.