Richard A. Ketwitz, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01990837 (E.E.O.C. Apr. 14, 2000)

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).