01a55141
01-26-2006
Andrzej J. Rafalski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Andrzej J. Rafalski v. United States Postal Service
01A55141
January 26, 2006
.
Andrzej J. Rafalski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A55141
Agency No. 1K-221-0158-97
Hearing No. 100-2004-00042X
DECISION
Complainant timely initiated an appeal 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Mail Verification Clerk at the agency's Fairfax Post Office facility
in Virginia. Complainant sought EEO counseling and subsequently filed a
formal complaint on September 4, 1997, alleging that he was discriminated
against on the bases of national origin (Polish), disability (on the job
injury), age (47 years old, DOB: 12/11/49), and in reprisal for prior
EEO activity when:
(1) on several occasions, his payroll check was delivered on Friday,
and once on Saturday, rather than on Thursday;
on July 4, 1997, the work schedule was manipulated so that he would
not be paid for the holiday;
from July 5 through July 18, 1997, he was not paid for a 2.5-hour
shortage;
on June 11, 1997, he learned that his character was defamed by the Plant
Safety Specialist in a cc:mail (dated March 20, 1997) to his supervisor;
the 12 files he discovered in his supervisor's office were used as a
chain conspiracy against him for possible disciplinary action, including
a proposed removal;
on or about July 1, 1997, he became aware of a cc:mail memo by the Senior
Injury Compensation Specialist, dated March 13, 1997, which he feels is
a conspiracy to place him in a hostile work environment and force him
to do a job which duties are in conflict with his medical restrictions;
on or about July 1, 1997, he became aware of a cc:mail memo by the
Senior Injury Compensation Specialist, dated April 4, 1997, which he
feels is a conspiracy to discredit his stress claim and place him in
a false light; and
on an unspecified date, the file containing 12 folders of his
confidential records was used to defame, embarrass and present him in
a bad image with the intent to destroy his reputation and character.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ. In an Order Dismissing Complainant's
Request for a Hearing and Returning Complaint for Final Agency
Decision dated March 23, 2005, the AJ sanctioned complainant for his
conduct regarding discovery, finding that his conduct was dilatory and
contumacious.
In its FAD dated July 6, 2005, the agency concluded that complainant
was not discriminated against on the bases of his national origin, age,
disability or retaliation and that he was not subjected to harassment
that created a hostile work environment.
On appeal, complainant contends that he was denied due process of law when
the AJ sanctioned him for his conduct during discovery, dismissed his
request for a hearing and remanded the case to the agency for issuance
of a FAD. Complainant also contends that the agency's FAD involved
an erroneous interpretation of law, regulation and material fact.
The agency requests that we affirm its FAD.
Procedural Analysis
As a preliminary matter, we must determine whether the AJ properly
dismissed complainant's request for a hearing and remanded the case to
the agency for issuance of a FAD. The record evidence establishes that,
in a July 26, 2004 Scheduling Order, the AJ informed complainant that
she might impose sanctions if he engaged in anything that �remotely
resemble[d] a �campaign' of filing unnecessary letters and motions.�<1>
During a conference call on July 29, 2004, the AJ further reiterated
her instructions regarding any lack of cooperation between the parties,
and unnecessary correspondence or motions. The record reflects that on
March 2, 2005, complainant failed to comply with the AJ's verbal orders
on discovery and instead, filed an Objection to Oral Telephone Order
Regarding Discovery. On March 7, 2005, the agency moved for sanctions
against complainant for failing to respond to discovery demands and
instead propounding an argumentative submission. On March 23, 2005,
after concluding that complainant's actions with regard to discovery
had been dilatory and contumacious and that sanctions were warranted,
the AJ dismissed his hearing request.
EEOC Regulation 29 C.F.R. � 1614.109(f)(3) provides that, where a party
fails without good cause shown to respond fully and in a timely fashion
to the AJ's order and/or the party has not otherwise cooperated in the
discovery process, the AJ may impose sanctions. The AJ may: (i) draw an
adverse inference that the requested information, or the testimony of
the requested witnesses, would have reflected unfavorably on the party
refusing to provide the requested information; (ii) consider the matters
to which the requested information or testimony pertains to be established
in favor of the opposing party; (iii) exclude other evidence offered
by the party failing to produce the requested information or witness;
(iv) issue a decision fully or partially in favor of the opposing party;
or (v) take such other actions as appropriate.
Based on the foregoing, the Commission concludes that the AJ's
dismissal of complainant's hearing request was proper. Specifically,
the Commission finds that the AJ provided complainant with adequate
notice that sanctions could be imposed based on his failure to comply
with the Scheduling Order. The Commission notes that the AJ ordered
each party to serve their discovery responses no later than March 3,
2005, and reiterated to both parties that she would not tolerate any
more delays. Instead, complainant filed an Objection to Oral Telephone
Order Regarding Discovery on March 2, 2005, which amounts to a refusal to
abide by the AJ's order because it failed to comply with the AJ's order.
We are not able to arrive at any other conclusion in this case because
to do so would effectively reward complainant for his abuse and contempt
of the hearings process. The Commission will now address the agency's
FAD which found no discrimination.
Merits Analysis
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
legitimate, nondiscriminatory reasons for its actions.<2> See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination or retaliation. Id.
After a careful review of the record, we find that the FAD correctly
concluded that the agency did not discriminate against complainant
on the bases of national origin, age, disability, or in reprisal for
prior EEO activity. In finding no discrimination, the FAD relied on
the undisputed evidence regarding the fact that there were legitimate,
nondiscriminatory reasons for its actions. In regard to claim 1, the
record establishes that, pursuant to his request, complainant's payroll
check was sent to the Fairfax Post Office and then mailed to his home
address. As a result, complainant did not receive his payroll check on
Thursdays. The record also establishes that the problem was remedied
after complainant authorized direct deposit. In regard to claim 2,
the record evidence establishes that complainant was not eligible for
holiday pay because he was not in a pay status during the last scheduled
workday before the holiday or the first day after the holiday. It is
undisputed that complainant chose to be on leave without pay, as opposed
to annual leave or sick leave.
Concerning claim 3, the record reflects that during the week of July 5,
1997, complainant's timekeeper incorrectly inputted a one-hour lunch
rather than a one-half hour lunch. The resulting shortage of pay (2.5
hours) was rectified on the following payroll check. In regard to claim
4, the record evidence shows that, although complainant discovered a
cc:mail that contained inappropriate language regarding him, the writer
of the cc:mail was disciplined by management. Concerning claims 5
through 8, the record evidence establishes that, other than complainant's
unsubstantiated assertions, there is no evidence that any of the agency's
actions were based on his protected classes.
Under these circumstances, we find that the agency articulated a
legitimate, nondiscriminatory reason for its actions. The Commission
also finds that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discriminatory animus or retaliatory motive.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2006
__________________
Date
1The Commission notes that this admonition
was the result of problems between the parties regarding discovery dating
back to December 2003.
2 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.