0520090242
03-13-2009
Robert L. Rebele, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Rebele,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090242
Appeal No. 0120082957
Agency No. 4A117000708
GRANT
The agency timely requested reconsideration of the decision in Robert
L. Rebele v. United States Postal Service, EEOC Appeal No. 0120082957
(January 9, 2009). EEOC regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
At the time of the events at issue, complainant was employed as a Time
and Attendance Clerk at a postal facility in Garden City, New York.
In a formal EEO complaint filed on November 29, 2007, complainant alleged
that he had been discriminated against on the basis of reprisal when:
1. On or about September 4, 2007, complainant's leave was denied;
2. On or about September 21, 2007, complainant's Enterprise Resource
Management (eRMS) and Time and Attendance Control System (TACS) computer
access was taken away; and
3. As of November 28, 207, complainant had not been paid for Pay Period
19, week one.
In its final decision dated May 16, 2008, the agency found that claims 1
and 3 were moot and dismissed them accordingly. Specifically, the agency
found that complainant's leave was eventually approved and his salary
was corrected pursuant to a pay adjustment. Therefore, the agency found
that complainant's complaint was moot with respect to claims 1 and 3.
The agency's final decision also determined that complainant failed to
establish that discrimination occurred in claim 2. The agency found
specifically that complainant failed to establish a prima facie case
of employment discrimination. The record in the matter revealed that
complainant was given all the computer access necessary to perform the
specific duties of his job.
In EEOC Appeal No. 0120082957, the Commission affirmed the agency's
finding of no discrimination with regard to claim 2 and remanded claims
1 and 3 back to the agency for further processing. The Commission's
previous decision found that claims 1 and 3 could not be dismissed as moot
in light of complainant's request for compensatory damages. The agency,
in its request for reconsideration, contends that this was error because
the agency had already investigated claims 1 and 3 and issued a decision
on the merits alternatively finding no discrimination concerning claims
1 and 3.1 After reconsidering the previous decision and the entire
record, the Commission finds that the request meets the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to grant
the request.
Upon review of the record in this matter, the Commission finds that the
agency properly issued a finding of no discrimination concerning claims
1 and 3 of the instant matter. The record indicates that in its May 16,
2008 final decision, the agency initially dismissed claims 1 and 3 as
moot as discussed above. As an alternative to the moot dismissal, the
agency's decision included a discussion and finding of no discrimination
regarding claims 1 and 3.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
In the present case, the agency found that complainant failed to
establish a prima facie case of reprisal discrimination as alleged.
The agency determined that complainant failed to establish that an adverse
action occurred or that there was a casual link between the protected
activity and the adverse action or treatment by the agency. The record
in this matter does not demonstrate that discrimination occurred on any
alleged basis. In reaching this conclusion, the Commission finds that
complainant failed to establish that the agency's articulated legitimate,
business reasons for its conduct were a pretext for discrimination.
CONCLUSION
After reconsidering the previous decision and the entire record,
the Commission finds that the agency's request meets the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission
to grant the request. For the reasons set forth above, the decision
Appeal No. 0120082957 is MODIFIED, and the agency's final decision
on the merits of all three claims in the complaint concluding no
discrimination/retaliation occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 13, 2009
__________________
Date
1 We note here that the Commission's previous decision found that the
agency failed to request from complainant "objective evidence" to support
her claim for compensatory damages. The record, however, demonstrates
that the agency's EEO Investigator requested that complainant provide
such evidence, but complainant failed to do so.
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0520090242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013