01990681
08-11-2000
Pleas A. Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Southwest Area, Agency.
Pleas A. Thompson v. United States Postal Service
01990680; 01990681
.
Pleas A. Thompson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Southwest Area,
Agency.
Appeal Nos. 01990680; 01990681
Agency Nos. 1-G-741-0007-97; 1-G-741-0008-97
DECISION
Complainant timely initiated appeals from two final agency decisions
concerning his complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeals are accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that he was discriminated against on the basis of
retaliation when: (1) he received a �meets expectation� rating instead
of a �far exceeds� rating; and (2) his request to detail an employee
into a vacant position in his section was denied.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Manager, Maintenance Operations Support at the agency's
Tulsa, Oklahoma facility. Believing the agency had committed unlawful
discrimination, complainant sought EEO counseling and subsequently
filed two formal complaints on April 2, 1997. At the conclusion of the
investigations, 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 make the election
within the requisite time period, the agency issued two final decisions,
each finding no discrimination.
In the final decision concerning complainant's evaluation, the agency
concluded that complainant failed to establish a prima facie case of
retaliation because he did not show a causal connection between his prior
EEO activity and his evaluation. The agency found that complainant's
supervisor credibly explained that the two comparison employees who
received �far exceed� ratings performed tasks that exceeded the normal
expectations of their positions, while complainant had not equally
performed such tasks. The agency concluded that complainant failed to
provide any evidence to support his allegation of retaliation.
In the final decision concerning the detail, the agency also concluded
that complainant failed to establish a prima facie case of retaliation
because he did not show a causal connection between his prior EEO activity
and the agency's denial of his detail request. The agency concluded that
the record did not show that the denial of the request was a pretext to
mask unlawful retaliation.
ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the Commission agrees with the agency that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for retaliation.<2>
In reaching this conclusion, we note that regarding the evaluation,
complainant's supervisor was the concurring official for the evaluations
of the cited comparators and he rated all the supervisors at complainant's
level as �meets expectations.�<3> We thus find that the cited comparators
are not similarly situated to complainant in that their performance
was reviewed by different supervisors. See Godby v. Department of the
Treasury, EEOC Request No. 05960220 (May 7, 1998). Moreover, we find
that other than complainant's bare assertion of retaliation, the record
contains no credible evidence demonstrating that his evaluation rating
was in retaliation for his prior EEO activity.
Regarding the detail, we note that complainant's supervisor was
informed that the individual requested by complainant did not meet
the qualifications of the position due to the requirements of the union
contract. As a result, complainant's supervisor advised complainant that
he could not detail the individual into the position. Complainant failed
to demonstrate that his supervisor allowed other supervisors to circumvent
the union contract to detail employees into positions. Moreover, we
find that complainant failed to provide any credible evidence that his
supervisor's denial of detail was for any reason other than above-stated
explanation. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision, it
is the decision of the Commission to affirm both of the agency's final
decisions.
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 (S0400)
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
__________________
Date
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION
ONLY)
INITIAL
DATE
TO: CARLTON M. HADDEN
TO: HILDA RODRIGUEZ
APPEAL NUMBER
01990680; 01990681
AGENCY NUMBER
1-G-741-0007-97; 1-G-741-0008-97
REQUEST NUMBER
HEARING NUMBER
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Dexter Brooks
August 11, 2000
(SUPERVISOR):
Gail Demers
(DIVISION DIRECTOR):
Robbie Dix III
COMPLAINANT(S):
Pleas A. Thompson
AGENCY:
United States Postal Service
DECISION:
AFFIRMED
STATUTE(S) ALLEGED:
Title VII
BASIS(ES) ALLEGED:
OR
ISSUE(S) ALLEGED:
T2, A3, 01
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE
DB7 / August 11, 2000 /p:fy00
SPELL CHECK
YES
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
X 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:__________________________________
LIST ISSUE CODES:__________________________________
X 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
X 4F - AGENCY FOUND NO DISCR./BREACH
X 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 3P - ADVERSE INFERENCE
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 4T - AJ ISSUED SUMMARY JUDGMENT DECISION
? 4U - OFO AFFIRMED AJ SUMMARY JUDGMENT
? 4V - OFO REVERSED AJ SUMMARY JUDGMENT
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
? 4Q - COMPLIANCE REQUIRED
REVISED - (2/3/00)
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.
2 While the agency concluded that complainant failed to establish a prima
facie case of retaliation in either complaint, we find that complainant
has established prima facie cases of retaliation. Complainant may
establish a prima facie case of retaliation by showing that: (1) he
engaged in Title VII protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) the adverse treatment in question
followed the protected activity within such a period of time that a
retaliatory motivation may be inferred. In this case, complainant
presented sufficient evidence to establish a prima facie cases of
retaliation in that he participated in recent protected activity which
his supervisor was aware of during the relevant time. However, like the
agency, we find that the supervisor articulated legitimate reasons for
the actions which were not shown to be pretext for unlawful retaliation.
3 The two comparators cited by complainant were lower level supervisors
for whom complainant's supervisor was the second-level supervisor.