01974161
10-05-1999
Rodolfo E. Segarra, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rodolfo E. Segarra v. United States Postal Service
01974161
October 5, 1999
Rodolfo E. Segarra, )
Appellant, )
) Appeal No. 01974161
v. ) Agency No. 4-E-870-1148-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
Appellant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with EEOC
Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
Appellant filed a complaint in which he alleged that the agency retaliated
against him for previous EEO activity by changing his route between June
27 and July 3, 1995. The agency investigated the complaint and issued
a final decision finding no retaliation, from which appellant appealed.
To prevail in his reprisal claim, appellant must first establish a prima
facie case, by showing that he engaged in protected activity, that the
official named in his complaint knew of that activity, and that he was
subjected to an adverse action in such a time or in such a manner as to
support an inference of retaliatory motivation. Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318 (D. Mass),
aff'd, 545 F.2d 222 (1st Cir. 1976); Frye v. Department of Labor,
EEOC Request No. 05940764 (December 15, 1994). In this case, we find
that appellant satisfied all three elements of the prima facie case,
in that the supervisor's decision to "bump" him from his desired route
occurred close enough in time to his previous EEO activity that it raises
suspicion of reprisal.
The supervisor stated that the route to which appellant was moved, "was
an easier route to carry and case." Affidavit B, p. 2. We find this
reason to be legitimate, nondiscriminatory and fully supported by the
record. The agency's internal procedures manual specified that utility
carriers such as appellant would not be moved off their scheduled routes,
unless the regular carrier is called in on an off-day, in which case the
regular carrier would "bump" the utility carrier to one of the other
four routes in an assigned string of routes. Exhibit 3. Apparently,
that is what happened in this case. The supervisor stated that the
regular carrier came in for overtime, and that as a result, he had to
bump appellant from route 801 to route 802. He also stated that, in
the past, appellant had never objected or otherwise refused to carry
another route. Affidavit B. Appellant does not present any evidence,
other than his own statements, which contradicts the testimony offered
by the supervisor, or which undermines the supervisor's credibility as
a witness.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that unlawful reprisal occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Oct. 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations