01a02065
05-10-2000
Roger N. Hopkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roger N. Hopkins v. United States Postal Service
01A02065
May 10, 2000
Roger N. Hopkins, )
Complainant, )
) Appeal No. 01A02065
v. ) Agency No. HO-0117-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission 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).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant failed to demonstrate by preponderant evidence that the agency
discriminated against him when he was not interviewed and subsequently
not selected for the position of Maintenance Supervisor based on reprisal
for prior his EEO activity.
BACKGROUND
Complainant filed a formal complaint on July 20, 1999, alleging
discrimination on the basis of reprisal (prior EEO activity)<2> when he
was not interviewed and subsequently not selected for the position of
Maintenance Supervisor, EAS-16, on June 4, 1999.
The agency accepted complainant's complaint for investigation and mailed
complainant a copy of the completed investigation. Complainant failed
to request either a hearing before an EEOC Administrative Judge or
a FAD. Accordingly, the agency issued its FAD on December 8, 1999. The
agency found that complainant failed to establish a prima facie case of
retaliation when he failed to show a nexus between his protected activity
and the agency's action. Further, the FAD found that the agency stated
a legitimate, nondiscriminatory reason for its decision, namely that
complainant failed to demonstrate that he had the supervisory training,
the experience, and the knowledge and skills for the position. The FAD
found that complainant failed to show that the agency's reasoning was
pretext and, therefore, failed to show that the agency's actions were
discriminatory. This appeal followed.
ANALYSIS AND FINDINGS
Complainant alleges disparate treatment on the basis of reprisal.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he or she engaged
in protected activity, e.g., participated in a Title VII proceeding;
2) that the alleged discriminating official was aware of the protected
activity; 3) that he or she was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated legitimate, nondiscriminatory reasons for the personnel
actions at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant has established a prima facie case of
reprisal discrimination, the burden shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. The agency argues
that complainant was not interviewed and not selected for the position
because he failed to meet the knowledge, skills, and experience needed
for the maintenance supervisor position. Upon review of the record,
we find that the agency has articulated legitimate, nondiscriminatory
reasons for its action. The burden returns to complainant to demonstrate
that the agency's reasons were pretext for discrimination. We find
that complainant has failed to establish that the agency's articulated
reason was pretextual. Accordingly, we find that complainant has failed
to show that the agency's actions harbored a discriminatory animus.
CONCLUSION
Accordingly, the Commission finds that the FAD was proper and is
AFFIRMED.
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).
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:
May 10, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1On 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.
2The record indicates that complainant filed Agency Nos. HO-0160-98,
HO-0106-99, and HO-0072-99.