Richard L. Lizotte, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 18, 2000
01986217 (E.E.O.C. Apr. 18, 2000)

01986217

04-18-2000

Richard L. Lizotte, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Richard L. Lizotte v. United States Postal Service

01986217

April 18, 2000

Richard L. Lizotte, )

Complainant, )

) Appeal No. 01986217

v. ) Agency No. 4-F-907-0010-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning his claim that the agency violated Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<0> The appeal

is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the complainant has established

that the agency retaliated against him based on his prior EEO activity

when management allegedly delayed sending an official to retrieve money

the complainant had received while delivering his route.

BACKGROUND

The complainant filed a formal complaint in October 1997 in which he

raised the issue identified above. Following an investigation, the

complainant did not request an EEO hearing and the agency thereafter

issued a final decision (FAD) dated July 29, 1998, finding that the

complainant had not been retaliated against. It is from this decision

that the complainant now appeals.

During the period in question, the complainant was employed as a

letter carrier at the agency's facility (the Facility) in Bell Gardens,

California. On September 17, 1997, the complainant was delivering his

route and received $984.82 for a cash-on-delivery item. The complainant

states that, because he did not feel comfortable keeping the money with

him, he called the Manager, Customer Service (the Responsible Official,

RO) and asked for someone to come and get it. The record reveals that,

approximately two hours later, a supervisor (the Supervisor) came to

get the money from the complainant. The complainant argues that the RO

intentionally delayed sending the Supervisor as a means of retaliating

against him.

The RO states that, pursuant to agency regulations, carriers are required

to secure money they receive on their route and then turn it in at

the end of the day. In this regard, the RO states that it would have

been proper for the complainant to simply keep the money locked in his

postal vehicle. According to the RO, the reason it took two hours for

the money to be retrieved was because the Supervisor was not immediately

available at the time the complainant called.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

is a three-step process. The complainant has the initial burden of

establishing a prima facie case. If the complainant meets this burden,

then the burden shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its challenged action. The complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

articulated by the agency was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

This analysis is equally applicable to claims brought under the ADEA. Loeb

v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

The complainant can establish a prima facie case of retaliation by showing

that: (1) he engaged in prior protected activity; (2) an official named

in the complaint knew of that activity; (3) he was disadvantaged by

an action of the employer subsequent to or contemporaneous with such

opposition and participation; and (4) the protected activity and the

adverse action were sufficiently close in time to permit an inference of

retaliatory motive. Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976). Even assuming that the complainant can satisfy elements 1,

2, and 4, we find that he has not satisfied element 3. Specifically,

we find that the complainant was in no way disadvantaged by having

to keep the $984.82 with him for two hours. Accordingly, we find the

complainant has not established a prima facie case based on reprisal,

and that, as such, he cannot establish that he was retaliated against

based on his prior EEO activity.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that he was retaliated him based on his

prior EEO activity.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 18, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

01 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.