Ron B. Lightsey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 2009
0120082304 (E.E.O.C. Sep. 17, 2009)

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