Ronald L. Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 25, 2000
03a00089 (E.E.O.C. Jul. 25, 2000)

03a00089

07-25-2000

Ronald L. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald L. Smith v. United States Postal Service

03A00089

July 25, 2000

.

Ronald L. Smith,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 03A00089

MSPB No. PH-0752-99-0333-I-1

DECISION

INTRODUCTION

On May 1, 2000, Ronald L. Smith (petitioner) timely filed a petition

with the Equal Employment Opportunity Commission (EEOC or Commission)

for review of an Order of the Merit Systems Protection Board (MSPB) dated

March 31, 2000, concerning an allegation of discrimination in violation

of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. �621 et seq. The petition is governed by the provisions of

the Civil Service Reform Act of 1978 and EEOC regulations, 29 C.F.R. �

1614.303 et seq. The MSPB found that the United States Postal Service

(agency) did not engage in discrimination as alleged by petitioner.

For the reasons which follow, the Commission CONCURS with the decision

of the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated against him based on

reprisal when he was removed from employment constitutes a correct

interpretation of the applicable laws, rules, regulations, and policy

directives, and is supported by the record as a whole.

BACKGROUND

Petitioner filed an appeal with the MSPB challenging his removal

from employment effective December 14, 1997, on a charge of improper

conduct/unacceptable performance.<1> A hearing was held before an MSPB

administrative judge (AJ) on September 10, 1999. On October 20, 1999,

the MSPB AJ issued an Initial Decision (ID) sustaining the removal

and finding that the agency did not discriminate against petitioner.

Petitioner filed a petition for review by the full Board, which was

denied.

Petitioner was employed by the agency as a Mail Processing Equipment

Mechanic at the agency's Processing and Distribution Center (PDC)

in Lancaster, Pennsylvania. In 1997, a type of equipment called

�carrier cells� and associated parts began disappearing and were in

short supply. As a result of a Postal Inspection Service investigation,

it was determined that petitioner had been dumping this equipment in

the trash compactor. A recommendation that petitioner be removed from

employment followed.

Petitioner argued, in relevant part, that his removal was effected

in retaliation for a 1995 EEO complaint he had filed alleging age

discrimination on the part of the Plant Manager of the PDC. In that

complaint, he alleged that on three dates in October and November 1995,

the following occurred: on one occasion, the Plant Manager screamed at

him, �You are here to repair the machine, do you hear me?�; on another

occasion, the Plant Manager said to him, �You are going to be fired, mark

my words�; and on a third occasion the Plant Manager told him that he

(petitioner) was not on the job for ten minutes. The agency dismissed

the complaint in January 1996 for failure to state a claim.

The MSPB AJ upheld petitioner's removal, finding that there was no

�genuine nexus� between petitioner's 1995 protected activity and his

removal from employment in 1997. This petition followed.

ANALYSIS AND FINDINGS

The Commission must determine whether, with regard to petitioner's

allegation of discrimination, the decision of the MSPB constitutes

a correct interpretation of the applicable laws, rules, regulations,

and policy directives, and is supported by the record as a whole.

29 C.F.R. �1614.305(c). The Commission finds that the MSPB's decision

is supported by the record and, for the reasons stated below, CONCURS

with its findings.

In any proceeding, either administrative or judicial, involving an

allegation of discrimination, it is the burden of the complainant,

petitioner herein, to initially establish that there is some substance

to his or her allegation. In order to accomplish this burden the

complainant must establish a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also

Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This

means that the complainant must present a body of evidence such that,

were it not rebutted, the trier of fact could conclude that unlawful

discrimination did occur.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, petitioner must show: 1) that he 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 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. 1982), cert. denied, 459 U.S. 1071 (1982).

Petitioner engaged in protected activity by filing an EEO complaint

in 1995. It is not clear whether the proposing or deciding officials,

neither of whom was the Plant Manager, had knowledge of his protected

activity. Petitioner was disadvantaged subsequent to his protected

activity when he was removed from employment. There does not appear to be

a fair basis for inferring a causal connection between a complaint filed

against the Plant Manager in 1995 and dismissed shortly thereafter and

petitioner's removal nearly two years later. Accordingly, the Commission

is not persuaded that petitioner has established a prima facie case of

reprisal discrimination.

Assuming for the sake of argument that a prima facie case were

established, the burden would then shift to the agency to articulate a

legitimate, non-discriminatory explanation for its action. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard,

the agency need only produce evidence sufficient �to allow the trier of

fact rationally to conclude� that the agency's action was not based on

unlawful discrimination. Id. at 257. The agency has met that burden

here by explaining that petitioner was discovered to have disposed of

the missing carrier cells and carrier cell parts by placing them in a

trash compactor, in contravention of established agency procedures.

Once the agency has articulated such a reason, the question becomes

whether the proffered explanation was the true reason for the agency's

action, or merely a pretext for discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,

in other words, �going forward,� may shift, the burden of persuasion, by

a preponderance of the evidence, remains at all times on the complainant.

Burdine, 450 U.S. at 256.

Here, petitioner has not shown that agency officials more likely were

motivated by retaliatory animus than by petitioner's actions when they

proposed and eventually imposed his removal. Petitioner alleges that he

was �set up�; however, the record reflects that, pursuant to tips from

other employees received by the Postal Inspection Service, petitioner

was observed improperly disposing of carrier equipment. Further facts

argued by petitioner � that the Plant Manager avoided him after the

1995 EEO complaint had been filed and that eventually his (petitioner's)

shift was changed � also do not support a finding of pretext.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

CONCUR with the final decision of the MSPB finding no discrimination.

The Commission finds that the MSPB's decision constitutes a correct

interpretation of the laws, rules, regulations, and policy directives

governing this matter, and is supported by the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, WITHIN

THIRTY (30) CALENDAR DAYS of 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.

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:

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 25, 2000

________________________

Date

1The record reflects that petitioner first filed an EEO complaint on

this matter, and that the complaint had proceeded to the hearing stage,

but had not yet been heard, when the EEOC administrative judge (AJ) to

whom the case had been assigned recognized that the separation claim

was a �mixed case,� that is, one whose subject matter was appealable

to MSPB, and that the agency had not properly informed petitioner of

his rights. The EEOC AJ remanded the complaint to the agency, and

petitioner thereafter timely filed an appeal with MSPB. It is noted

that contemporaneously with these proceedings, petitioner also pursued

a grievance through arbitration. The MSPB AJ subsequently found that

petitioner was collaterally estopped from re-litigating before him

certain matters which had been decided by the arbitrator. Contrary to

petitioner's argument on appeal, there is no indication that petitioner

was estopped from presenting evidence bearing on his claim of reprisal

discrimination, which was not one of the matters litigated before the

arbitrator, and is the only matter presently before the Commission;

i.e., the Commission's authority to review this case extends only to

the MSPB AJ's finding regarding the claim of reprisal discrimination,

and not to the appropriateness of the penalty or any other matter.