01a00369
04-11-2000
Leslie J. Fejfar, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leslie J. Fejfar, )
Complainant, )
) Appeal No. 01A00369
v. ) Agency No. 1F-927-0012-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his complaint of unlawful retaliation in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). Complainant contends that
he was retaliated against (based on a dispute over a job task) when,
on or about September 8, 1998: (1) he was required to provide medical
documentation for leaving work because of stress; and (2) he was issued
a seven-day suspension, which was later reduced to a letter of warning.
The record reveals that during the relevant time, complainant was employed
as a mechanic at the agency's P & DF facility in Anaheim, California.
In September, 1998, several days before the incidents here at issue,
complainant was asked by a supervisor if he wanted to do certain tasks,
and he declined. According to complainant, his conversation with his
supervisor then "turned into a shouting match," and a manager "intervened
and settled the issue." Record of Investigation (ROI) at Affidavit A.
Complainant subsequently overheard a supervisor discussing the incident
publicly, so complainant "took off for a few days to let things mellow out
and management decided to agree to my terms of a public apology and time
away from said supervisor, so officials from EEO were involved." Id.
Several days later, after he returned to work, complainant was instructed
by his supervisor to use annual leave to go home and change the canvas
shoes he was wearing, and that if he did not return within a proscribed
period of time he would be deemed Absent Without Official Leave (AWOL).
Complainant contends that he could not travel home and return to work
within the time allotted, so he told his supervisor that he would take
annual leave for the rest of the day. Complainant then received a
telephone call at home advising him that because he stated that he was
taking leave due to "stress," he had to present medical documentation
authorizing his return to work. When complainant returned to work the
next day without the requested medical documentation, and again wearing
canvas shoes, he was issued a seven-day suspension, which was subsequently
reduced to a letter of warning. Believing he was a victim of retaliation,
complainant sought EEO counseling and subsequently filed a formal
complaint on December 16, 1998. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of retaliation because he failed to identify any
similarly situated comparators outside his protected class who had been
treated more favorably. The FAD further concluded that even assuming
complainant had established a prima facie case of retaliation, the agency
had articulated legitimate, non-retaliatory reasons for its actions,
and complainant had failed to demonstrate that these reasons were a
pretext for retaliation.
On appeal, complainant contends that the shoes he was disciplined for
wearing were of the same type that was worn by management and fellow
employees. He further contends that management improperly requested
medical documentation prior to allowing his return to work, arguing
that under the collective bargaining agreement he is permitted to use
sick leave for up to three days without submitting a doctor's note.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), we find that the FAD erred in
reasoning that complainant could only establish a prima facie case
of retaliation if he identified comparator employees outside his
protected class who were treated more favorably than he was treated.
While comparative evidence is usually used to establish disparate
treatment, complainant need only set forth some evidence of acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Where reprisal is the basis for a Title VII claim, a complainant
may establish a prima facie case of discrimination by showing that:
(1) he engaged in prior protected activity; (2) an official named
in the complaint knew of that activity; (3) he was disadvantaged by
an action of the employer subsequent to or contemporaneous with such
opposition and participation;<2> and (4) the protected activity and the
adverse action were sufficiently close in time to permit an inference of
retaliatory motive. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). Protected activity is defined as participating in EEO
activity or opposing a practice made unlawful by one of the employment
discrimination statutes. 42 U.S.C. � 2000e-3(a). Applying this
standard, we find that complainant has established a prima facie case
of retaliation in light of his undisputed assertion that several days
before the incidents at issue he had a dispute with his supervisor which
was resolved with involvement by the EEO office.<3>
Nonetheless, considering the entire record, the Commission finds that
the FAD properly concluded that complainant has not established by a
preponderance of the evidence that the agency's proffered reasons for
its actions are a pretext for retaliation. In reaching this conclusion,
we note that the record reveals that the applicable safety procedures
prohibit employees from wearing canvas shoes. See ROI at Exhibit 4.
Moreover, complainant concedes that the discipline at issue was imposed
after he returned to work once again wearing canvas shoes in violation
of this policy, after having been sent home to change his shoes the
day before. Further, complainant has not established that the policy
was applied differently to other employees in similar circumstances,
i.e. other employees who worked with machinery on the plant floor.
With respect to management's requirement that complainant bring in
medical documentation before returning to work, the parties agree
that complainant stated before leaving that he could not handle the
"stress." While complainant contends that he obtained permission to use
annual leave for the rest of the day before departing, the Maintenance
Supervisor contends that complainant "told me he was going home on
stress, and that he refuses to sign any paperwork." ROI at Affidavit C7.
The Maintenance Supervisor also identified another employee to whom the
same medical documentation requirement was applied after she left work
citing "stress" as the reason. Therefore, on the record presented,
we do not find that complainant has established that, more likely than
not, he was required to provide medical documentation or subjected to
discipline for retaliatory reasons.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' 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:
April 11, 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:
___________________________
Equal Employment Assistant Date
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 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 an adverse employment action is required in order to state
a claim of discrimination, the Commission interprets the statutory
retaliation clauses more broadly "to prohibit any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity."
EEOC Compliance Manual, Section 8 (Retaliation) at 8-13 - 8-14 (May 20,
1998); see also 29 C.F.R. � 1630.12.
3We note, however, that the record does not reveal the nature of
any alleged discrimination at issue in the dispute. Moreover, the
investigative record reveals that the EEO office had no record of any
EEO complaint filed by complainant within the two years prior to the
incidents in question. See Report of Investigation at 6.