01990837
04-14-2000
Richard A. Ketwitz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Richard A. Ketwitz v. United States Postal Service
01990837
April 14, 2000
Richard A. Ketwitz, )
Complainant, )
) Appeal No. 01990837
v. ) Agency No. 1C-191-1197-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
Agency. )
____________________________________)
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, 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 alleged that he was retaliated against because of prior
EEO activity when management reassigned him to a different position in
July 1995.
The record reveals that during the relevant time, complainant was
employed as a Supervisor of Maintenance Operations at the agency's
Bulk Mail Center in Philadelphia. Believing the agency discriminated
against him as referenced above, complainant sought EEO counseling
and subsequently filed a formal complaint on December 1, 1995. 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 that
the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of retaliation. In reaching this conclusion,
the agency determined that the seven year hiatus between complainant's
prior protected activity and the reassignment at issue rendered a causal
connection implausible. On appeal, complainant contends that the agency
should have inferred a retaliatory motive based on approximately thirty
allegedly retaliatory actions which occurred between 1989 and 1995.<2>
The agency requests that we affirm its FAD.
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), complainant
can establish a prima facie case of retaliation by showing that: (1)
he engaged in prior protected EEO activity; (2) the responsible agency
officials were aware of that activity; (3) he was subject to an adverse
employment action; and (4) the adverse action followed the protected
activity at such a time and in such a manner as to permit an inference
of retaliatory motivation. See Devereux v. United States Postal Service,
EEOC Request No. 05960869 (April 24, 1997).
The Commission notes that complainant participated in prior protected
activity of which management was aware and that management switched
complainant's work assignment with that of another Maintenance Supervisor
based on the belief that neither supervisor was performing his duties.
Complainant would have us conclude that the reassignment was simply
the culmination of approximately thirty allegedly retaliatory actions
taken by management over a period of years which, considered together,
are sufficient to substantiate an inference of retaliation. However,
the Commission finds that the evidence, a litany of complainant's
disagreements with the exercise of management's authority, is insufficient
to overcome the severely attenuated temporal connection between his prior
protected activity and the reassignment. Therefore, after a careful
review of the record, including 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 (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:
April 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 The Commission affirmed the agency's determination that complainant
failed to make timely EEO Counselor contact with regard to these allegedly
retaliatory actions. See Ketwitz v. United States Postal Service,
EEOC Appeal No. 01964326 (September 19, 1997).