01981333
03-21-2000
Joseph Barini, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.
Joseph Barini v. United States Postal Service
01981333
March 21, 2000
Joseph Barini, )
Complainant, )
) Appeal No. 01981333
v. ) Agency No. 4F-913-0068-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the basis of reprisal (re: Agency No. 4F-913-1139-96) in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges he was discriminated against on
January 11, 1997, when his bid job was abolished and he was made an
unassigned regular. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the Commission AFFIRMS
the agency's decision.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk, PS/5, at the agency's Simi Valley,
California Post Office facility. Complainant testified that when his
bid job was abolished and he became an unassigned regular, his days off
were changed, but his hours and duties remained the same. He further
testified that there were no changes in the operation that warranted
his job being abolished. Complainant stated that supervisor A and
the Postmaster were aware of his prior EEO activity and abolished his
job in retaliation for this activity. Complainant cited two comparative
individuals (with no prior EEO activity) who likewise had their positions
abolished, and avowed that their jobs were changed to obscure the issue
of retaliation against him.
The Postmaster stated that he was the concurring official who rescheduled
the Clerks in an effort to address the overtime problem in Simi Valley.
He further stated that he instructed two supervisors, A and B, "to come
up with a plan to reduce overtime in the clerk craft." He testified
that after these supervisors met, they approached him with a plan which
he approved. The Postmaster further testified that complainant was not
singled out, as schedule changes, resulting in abolishment, were also made
for two other Clerks. While noting that he was not aware if complainant
had EEO activity in the last eleven years, the Postmaster indicated that
he believed complainant was involved in EEO activity before he became
Postmaster at that facility. However, he asserted that complainant's
prior EEO activity was "never discussed or considered" when reaching
this decision. Finally, the Postmaster noted that complainant is the
Chief Steward for the union. He maintained that this knowledge also
had no bearing on management's decision.
The record reveals that neither supervisor A or B submitted an affidavit
as part of complainant's investigative file. Further, complainant's prior
EEO complaint (Agency No. 4F-913-1139-96, EEOC Appeal No. 01994991) for
which he is claiming reprisal, is currently awaiting adjudication here at
the Commission. This prior complaint, alleging events of discrimination
in September and October 1996, was filed by complainant on September
11, 1996. In that complaint, supervisor A is the alleged responsible
official named by complainant.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on February 19, 1997.
By letter dated March 11, 1997, complainant was advised that his
allegation had been accepted for investigation. At the conclusion of the
investigation, complainant was sent a copy of the investigative file and
notified of the opportunity to request either a hearing before an EEOC
Administrative Judge or a FAD without a hearing. Although complainant
received the file and hearing rights on June 28, 1997, the record
shows that the agency did not receive any response from complainant.
Therefore, the agency issued its FAD on November 13, 1997.
The FAD concluded that complainant failed to establish a prima facie
case of reprisal discrimination because he presented no evidence that
similarly situated individuals not in his protected class were treated
differently under similar circumstances. The FAD then concluded that
the agency articulated a legitimate, nondiscriminatory reason for its
actions, namely, that the Postmaster stated that his actions were taken
to reduce office overtime at the Simi Valley facility.
The agency noted that schedule changes, resulting in abolishment,
were made for two other Clerks for the same reason. Finally, the FAD
found that complainant did not establish that more likely than not, the
agency's articulated reason was a pretext to mask unlawful discrimination
or retaliation.
On appeal, complainant essentially contends that because the schedule
changes did not reduce overtime and are inefficient, it should be
blatantly apparent that management used "overtime" as a pretext to
retaliate against him.
ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
I. Prima Facie Case
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. McDonnell
Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997). We note that a nexus or causal relationship between
his prior protected EEO activity and the later agency action may be shown
by evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive can
he inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Here, the record clearly shows that complainant engaged in prior
EEO activity in September and October 1996; that an agency official,
particularly supervisor A, was obviously aware of his prior EEO activity;
that complainant was subjected to adverse treatment by the agency when
his bid job was abolished and he was made an unassigned regular; and a
nexus exists between the September/October 1996 activity and the present
adverse action occurring in January 1997, because both transpired within
such a short period of time. Therefore, complainant has established a
prima facie case of reprisal discrimination.
II. Legitimate, Nondiscriminatory Reason
After complainant establishes a prima facie case of discrimination,
the burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for abolishing complainant's position. Burdine,
450 U.S. at 253. The agency maintained that the Postmaster's action was
taken to reduce office overtime at the Simi Valley facility. The agency
noted that schedule changes, resulting in abolishment, were made for two
other Clerks for the same reason. The Commission finds that the agency
has articulated a legitimate, nondiscriminatory reason explaining why
complainant's bid job was abolished and he was made an unassigned regular.
III. Pretext for Discrimination
Because the agency has articulated a legitimate, nondiscriminatory reason
for its decision, complainant now bears the burden of establishing that
the agency's articulated reason is a pretext for discrimination. Shapiro,
supra. Complainant can do this by showing that a discriminatory reason
motivated the agency. Id. (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law. However, disbelief
of the reasons put forward by the agency, together with the
elements of the prima facie case, may suffice to show intentional
discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center, 113 S.Ct. at 2749)
(other citations omitted).
After a thorough review of all the evidence of record, the Commission
finds that complainant has failed to meet his burden of establishing,
by a preponderance of the evidence, that the agency's reason for his
reassignment was a pretext masking discrimination. We note that while
complainant's argument that the agency's overtime reduction plan does
not, in fact, reduce overtime may warrant scrutiny. The Commission
concludes, however, that without more, it seems implausible that the
agency abolished and reassigned the positions of two other Clerks (with
no prior EEO activity) to obscure the issue of retaliation against
complainant. There is no credible evidence to demonstrate that the
agency's actions in this situation were rooted in retaliatory animus.
Thus, the Commission finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for its
actions were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
decision.
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 (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
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:
March 21, 2000
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:
_______________ __________________________
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.