Leslie J. Fejfar, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01a00369 (E.E.O.C. Apr. 11, 2000)

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.