03A10108
11-16-2001
Amedeo A. Vitanza, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amedeo A. Vitanza v. United States Postal Service
03A10108
November 16, 2001
.
Amedeo A. Vitanza,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10108
MSPB No. AT-0752-99-0676-I-2
DECISION
On September 24, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB or Board) concerning
his claim of discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner, a Supervisor, Maintenance Operations,<1> EAS-16, at an agency
facility in Panama, Florida, alleged that he was discriminated against
on the bases of race (Hispanic (Borigua)<2>), national origin (Hispanic
(Borigqua)), and reprisal, when he was removed from his position based
on charges of: (1) failure to maintain a regular work schedule; (2)
failure to follow leave procedures; and (3) absence without leave (AWOL).
On November 5, 1999, petitioner filed a mixed case appeal with the MSPB.
BACKGROUND
After a hearing, the MSPB Administrative Judge affirmed the agency action,
sustaining all of the charges. The AJ found that petitioner failed to
present any evidence that other similarly situated employees were treated
more favorably or that he was adversely affected by a seemingly neutral
business practice. The AJ further noted that petitioner testified that
Supervisor B, his immediate supervisor, harassed and yelled at him and
was out to get him. The AJ additionally noted that the Plant Manager,
the Deciding Official, testified, without rebuttal, that he was unaware
of petitioner's race or national origin at the time he took the action
in dispute. The AJ therefore found that petitioner failed to prove
by a preponderance of the evidence that he was discriminated against
based on race or national origin. The AJ also addressed petitioner's
allegation of reprisal for prior EEO complaints. The AJ noted that the
record reflected petitioner's prior protected activity. However, the
AJ found there was no evidence of a connection between the protected
activity and the action taken. In the AJ's view, there was also no
evidence that Supervisor B or the Plant Manager knew about petitioner's
EEO activity prior to the removal action. The AJ thus concluded that
absent evidence of a causal connection, the allegation of reprisal failed.
The AJ finally found that the penalty imposed, removal, was within the
limits of reasonableness. The Board affirmed the initial decision with
regard to the administrative judge's findings sustaining the charges,
but vacated the initial decision, pertaining to the penalty. The Board
(majority) mitigated the penalty to a 30-day suspension and a demotion
to a non-supervisory position at the next highest grade.
On petition to the Commission,<3> petitioner alleges that the agency
attempted to remove him in retaliation for scheduling a hearing in
another EEOC case, and while settlement and pre-trial discussions were
taking place. Petitioner also alleges that, in order to remove him,
agency management colluded and committed perjury; falsified and withheld
medical records; arbitrarily and capriciously used leave policy; and
denied him access to his work. Petitioner additionally made numerous
allegations not related to the action of removal before the Board, e.g.,
denial of promotion, withholding raises and bonuses. The Commission's
review is limited to those allegations related to the action of removal
before the Board.<4>
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB, with respect to the allegation of discrimination, constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
ANALYSIS AND FINDINGS
Disparate Treatment
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A petitioner must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the petitioner to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Petitioner may establish a prima facie case of discrimination by showing
that he is a member of a protected group and that he was treated less
favorably than other similarly situated employees outside her protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). Petitioner may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The 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 a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
petitioner has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Here, the agency articulated legitimate, nondiscriminatory reasons for
the action at issue, i.e., petitioner's failure to maintain a regular work
schedule, failure to follow leave procedures, and absence without leave.
Both the AJ and the Board sustained these reasons on a factual basis.
While petitioner, on appeal, disputes the findings, he has not presented
evidence to contradict the findings. Petitioner has only presented
general and unsupported allegations. Accordingly, the Commission finds
that petitioner has not shown pretext.
Retaliation
To establish a prima facie case of reprisal discrimination, petitioner
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). In general, claims alleging reprisal discrimination
are examined under the tripartite analysis first enunciated in McDonnell
Douglas, discussed, supra. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
Assuming arguendo that petitioner has set forth a prima facie case,
we have already found that the agency has articulated legitimate,
nondiscriminatory reasons for the action at issue. Petitioner has failed
to show the agency's articulated nondiscriminatory reasons to be pretext.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the 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 policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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, Director
Office of Federal Operations
November 16, 2001
Date
1 Although petitioner was the Supervisor, Maintenance Operations,
he was on detail as Supervisor of Mail Processing, resulting from a
fitness for duty examination and his being placed on limited duty.
2 Petitioner explains in his petition that Borigua is the name and
origin of peoples from Puerto Rico who believe that the island is being
illegally held by the United States.
3 Petitioner indicates that the Board's decision did not give him
appeal rights to the Commission. However, the AJ's decision indicated
that if petitioner disagreed with the Board's final decision, he could
obtain further administrative review by filing a petition with the EEOC
no later than 30 calendar days after the date of the initial decision
became final. Petitioner's petition was timely.
4 Petitioner also alleges that the agency �refused to provide
transportation resulting in an inability to attend the scheduled hearing.�
However, the record shows that complainant did, in fact, attend and
indeed testified at the hearing before the MSPB Administrative Judge.