0120082304
09-17-2009
Ron B. Lightsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ron B. Lightsey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082304
Agency No. 1H-301-0062-07
DECISION
On April 14, 2008, complainant filed an appeal from the agency's March
11, 2008 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission affirms the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing Clerk at the Atlanta Processing and Distribution Center
in Atlanta, Georgia. The record reflects that under a new collective
bargaining agreement, the agency was required to convert part-time
flexible employees to full-time regular employees. A Memorandum of
Understanding indicated that this conversion would be completed by
December 1, 2007. The first group of part-time flexible employees was
converted on August 4, 2007. Complainant was included in that group.
However, due to a computer error, complainant was not converted until
October 5, 2007, retroactive to August.
On September 14, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected EEO
activity when on or about June 25, 2007, he became aware that employees
with less seniority were converted to regular before complainant was.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its FAD, the agency determined that complainant failed to establish
a prima facie case of retaliation since complainant failed to show
that a nexus existed between complainant's prior EEO activity and the
instant complaint. The agency determined that the Operations Support
Specialist and Complement Coordinator (OSS) who was responsible for
converting employees was not involved in complainant's previous EEO
cases and had no knowledge of his prior EEO activity. Additionally,
the agency found that since three years had passed between complainant's
prior EEO complaint and the instant complaint, complainant failed to
show that a nexus existed between the two cases. The agency further
determined that the even assuming complainant established a prima facie
case, the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, according to the OSS, no conversions under
the terms of the new collective bargaining agreement occurred prior to
the August 4, 2007. Further, any delay to complainant's conversion
was due to a computer error where complainant was entitled to a step
increase at the same time which could not be processed concurrently.
The step increase was processed but the conversion was not. This error
was not discovered until a later date. The agency found that complainant
failed to establish that the agency's articulated reasons were a pretext
for retaliation. The agency concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant reiterates arguments previously made that he was entitled to
be converted to full-time employment prior to other employees and that
the agency's failure to do so is evidence of their intent to retaliate
against complainant.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1) he
or she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, he or she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission
adheres to the rule that adverse actions need not qualify as "ultimate
employment actions" or materially affect the terms and conditions of
employment to constitute retaliation Burlington Northern and Santa Fe
Railway Co. v. White, 548 U.S. 53 (2006).
The record reveals that the OSS had no knowledge of complainant's prior
EEO activity. Accordingly, we find that complainant failed to establish
that a nexus existed between the prior EEO activity and the adverse
treatment. Although complainant argues that the prior EEO activity
is pending on appeal in the U. S. Court of Appeals for the Eleventh
Circuit, the OSS testified that she had no knowledge of complainant's
EEO activity. As such, complainant has not established that the pending
appeal influenced the OSS' actions. Accordingly, we find that complainant
failed to establish a prima facie case of retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final decision finding that retaliation did not occur as alleged.
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
September 17, 2009
Date
2
0120082304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120082304