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.