01972088
02-10-2000
Nicholas J. Barbrie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Nicholas J. Barbrie, )
Complainant, )
) Appeal No. 01972088
v. ) Agency No. 4C170101996
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of reprisal (prior EEO activity) and physical disability (none
specified), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.; and the Rehabilitation Act of
1973,<1> as amended, 29 U.S.C. �791 et seq.<2> Complainant alleges he
was discriminated against when on or about May 8, 1996, he was issued
a Notice of Suspension (NOS) for seven days. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a Motor Vehicle Operator at the agency's Post Office in
Scranton, Pennsylvania. The record further shows that complainant began
attending work- hardening sessions at the WorkMed Center on April 3,
1996, and on that day, complainant's supervisor (CS) was informed by
phone and fax by an occupational therapist at the Center that complainant
was not conducting himself properly during his sessions. Specifically,
the occupational therapist alleged that complainant made comments of a
sexual nature to her which she found offensive and touched her several
times.<3> CS then forwarded the fax detailing complainant's conduct to
the facility Postmaster. Complainant was notified that his sessions at
WorkMed had been canceled, and following questioning by CS was issued
the NOS for Unacceptable Conduct and Failure to Follow Instructions.<4>
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on May 24, 1996. At the
conclusion of the investigation, complainant was informed of his right
to request a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge, or request a final decision by the agency.
After failing to respond within the appropriate time frame, the agency
issued its FAD.
The FAD found that complainant failed to establish a prima facie case
of physical disability discrimination because he failed to demonstrate
that he was a qualified individual with a disability or was regarded
or treated by the agency as having a disability. In addition, the FAD
found that complainant presented no evidence that similarly situated
individuals not in his protected classes were treated differently under
similar circumstances. The FAD further found that, in any event, the
agency articulated a legitimate, nondiscriminatory reason for issuing
the NOS, namely, complainant's sexual harassment of the occupational
therapist, and further, that this articulated reason was not a pretext
to mask discrimination. The FAD also found that complainant failed to
establish a prima facie case of reprisal, as he failed to show that a
nexus existed between his protected activity and his sexually harassing
acts toward the occupational therapist. Complainant has made no new
arguments on appeal, and the agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission finds that the FAD summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. The Commission notes
that the investigative file is incomplete as it contains no information
regarding the reason complainant had been out of work for one year prior
to attending work- hardening sessions or the nature of any disability he
may have had. However, we agree with the FAD's finding that the agency
articulated a legitimate, nondiscriminatory reason for issuing the NOS,
and that complainant failed to present evidence that the agency's reason
for issuing the NOS was a pretext for unlawful disability discrimination.
In addition, we find that the evidence is insufficient to establish that
complainant was discriminated against on the basis of reprisal. We note,
however, that contrary to the findings of the FAD, for a prima facie case
of reprisal discrimination to be established, a nexus must exist between
the engagement in protected activity and subsequent adverse action by
the agency. Hochstadt, supra. In the instant case, the Commission finds
that complainant has failed to establish the required nexus between his
prior EEO activity and the issuance of the NOS.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, the FAD is AFFIRMED
AS CLARIFIED.
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
February 10, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
2 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.
3 We note that complainant conceded, when questioned by CS, that he had
made inappropriate comments to the occupational therapist during his
therapy session and touched her. See Investigative Report, at I-5.
4 We note that complainant filed a union grievance over the NOS which
did not contain EEO claims.