James P. Pedrazzoli, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01970833 (E.E.O.C. Oct. 3, 2000)

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.