0120091578
07-09-2009
Pablo Alvarez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pablo Alvarez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091578
Hearing No. 510-2008-00268X
Agency No. 4H330002308
DECISION
On February 25, 2009, complainant filed an appeal from the agency's
December 23, 2008 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Fort Lauderdale North Ridge Annex
work facility name in Fort Lauderdale, Florida. On February 14, 2008,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of reprisal for prior protected EEO activity under
Title VII when:
1. On October 17, 2007, complainant was issued a Seven-Day Suspension,
subsequently reduced to an "official discussion";
2. on November 26, 2007, complainant was issued a Fourteen-Day Suspension,
subsequently reduced to a Letter of Warning (LOW);
3. on December 13, 2007, complainant was placed on Emergency Placement
in a Non-Duty, Non-Pay Status, which was subsequently rescinded; and
4. on January 14, 2008, complainant was issued a Notice of Removal,
which was subsequently rescinded.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged. Specifically, the agency found
that because the actions had all been rescinded or reduced to letters of
warning, complainant incurred no harm and was therefore not aggrieved
and failed to state a claim of reprisal. The agency further found,
however, that assuming complainant stated a valid claim, the agency
articulated legitimate, nondiscriminatory reasons for its actions and
the complainant failed to establish that the agency's reasons were a
pretext for reprisal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas at 802).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, and 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), a complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of his protected activity;
(3) subsequently, he was subjected to adverse treatment1 by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory reasons
for its conduct. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997).
With regards to claim 1, the October 17, 2008 seven-day suspension,
the notification of the suspension notified complainant that he was
being charged with unsatisfactory performance when he was observed
engaging in time-wasting practices, and with unacceptable conduct when
he verbally insulted the Station Manager (RMO1). With regards to claim
2, the November 26, 2007, fourteen-day Suspension, the notification of
suspension notified complainant he was being charged with unsatisfactory
performance when he failed to deliver a piece of Express mail prior to
noon of the day in question. With regards to claim 3, the placement
on a non-duty non-pay status, the notification of the placement said
that complainant was being disciplined for yelling and creating a
disturbance on the workroom floor. Finally, with regards to claim
4, the notice of removal, the notice said that complainant was being
removed for yelling at RMO1, including shouting at him to "get out of
my face." The agency having thus articulated reasons for its actions,
to ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanations are a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Following a review of the record, we find that complainant has not met
his burden of establishing, by a preponderance of the evidence, that
the agency's articulated reasons are a pretext for discrimination.
With regards to claim 1, complainant denies that he engaged in time
wasting practices but he made no reference to whether or not he verbally
insulted RMO1. See Report of Investigation (ROI) Affidavit A, pp. 3, 4.
With regards to claim 2, complainant maintains that he never signed
for an Express mail package on the day in question and he believes that
it was placed in his hamper without his knowledge. See id., pp. 5. 6.
With regards to claims 3 and 4, complainant maintains that he was doing
nothing wrong and the incidents were unprovoked. See id., pp. 7-9.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not shown that discrimination occurred, and we AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2009
__________________
Date
1 The Commission interprets the statutory retaliation clauses "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).
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0120091578
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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