01A11633
07-23-2002
Paul Magee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul Magee v. United States Postal Service
01A11633
July 23, 2002
.
Paul Magee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11633
Agency No. 4C-080-0010-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of reprisal for prior EEO activity when he was
issued a 7-day suspension on October 9, 1999 and a 14-day suspension on
November 29, 1999.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Edgemoor Post Office in
Wilmington, Delaware. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on January 4, 2000. 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. Complainant requested a final agency decision.
In its FAD, the agency concluded that complainant failed to state
a prima facie case of reprisal because the span of time between his
prior protected activity and the actions of his supervisors was too
long to establish a causal connection. The agency also found that
complainant's prior protected activity concerned a different supervisor
in a different postal facility from the supervisors responsible for the
current disciplinary action. Finally, the agency concluded that it stated
a legitimate non-discriminatory reason for issuing the suspensions which
complainant did not show were a pretext for discrimination.
On appeal, complainant contends that the supervisors who issued the
suspensions in October and November 1999 (S1 and S2 respectively)
were not truthful when they denied knowledge of complainant's previous
EEO activity because he spoke to each of them about his activity.
He further contends that S1's reasons for issuing complainant a 7-day
suspension were not credible because a witness corroborated his account
of the incident in question. More specifically, complainant contended
that he followed applicable rules regarding rest stops by stopping at an
approved rest stop for only 5 minutes, and that he continued to deliver
mail for an additional hour thereafter.
The agency responded to the appeal by reiterating its conclusions set
forth in its final decisions. The agency also argued that because the
disciplinary actions at issue were adjudicated through the grievance
process, the Commission should not disturb those decisions or risk giving
the appearance of policing the parties' collective bargaining agreement.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission finds that complainant failed to establish a
prima facie case of discrimination based on reprisal because he failed to
demonstrate a nexus between his prior protected activity in July 1998 and
the agency's issuance of a suspension in October 1999 and in November
1999. Even assuming that complainant established a prima facie case,
we find that complainant failed to show that S1 and S1 were motivated
to retaliate against him for engaging in protected activity.
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802).
Specifically, in a reprisal claim, according to the burdens set forth
in McDonnell Douglas, Hochstadt supra at 324, and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997),
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
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action.
In this case, complainant claims that on reporting to the Edgemoor Post
Office, the Branch Manager (S3) expressed to him that he was disgusted by
complainant's use of the EEO complaint process in gaining reinstatement
into his position in August 1998. Based on this statement, complainant
contends that S3 was behind the suspensions issued by S1 and S2 in the
latter part of 1999. Both S1 and S2 stated, however, that they were
responsible for deciding to issue the discipline and denied that they
were coerced into issuing complainant discipline by S3. They also denied
that they even knew about complainant's protected activity in the past.
Complainant claims
he told S1 about his protected activity but S1 stated that complainant
told him only of the tension between complainant and S3.
Furthermore, even though S3 acknowledged that he knew about complainant's
protected activity from his conversation with the Officer in Charge
in complainant's previous station, he denied that he was motivated to
take action against complainant. Therefore, aside from complainant's
statement, he did not demonstrate by a preponderance of the evidence that
those directly responsible for issuing the suspensions were motivated
by his previous protected activity or that they were directed by S3 to
issue the discipline as retaliation for his protected activity.
In addition, a third supervisor provided the account of complainant's
infraction leading to the 7- day suspension. Complainant did not
establish that this third supervisor was motivated by reprisal in
reporting a rule violation to S1.
Complainant further claimed that he was treated more harshly than
another employee who was disciplined for a similar infraction and that
the reason for the harsher discipline was his prior protected activity.
Specifically, S1 issued complainant a 7-day suspension based on a
violation of the rules for break time whereas a co-worker was given a
letter of warning for the same infraction on the same day. S1 stated that
the difference was based on complainant's previous disciplinary record
and, that complainant's co-worker did not have a record of any previous
disciplinary actions. The record contained no evidence responding to S1's
rationale or evidence which would call his credibility into question.
Therefore, complainant failed to demonstrate that S1's reasons were a
pretext for discrimination.
CONCLUSION
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
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 23, 2002
Date