Roger N. Hopkins, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 10, 2000
01a02065 (E.E.O.C. May. 10, 2000)

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.