05a60892
08-22-2006
Jerry T. Herringdine, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry T. Herringdine,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A60892
Appeal No. 01A61992
Hearing No. 100-2005-0360x-AES
Agency No. 4H310002405
GRANT
The agency timely requested reconsideration of the decision in Jerry
T. Herringdine v. United States Postal Service, EEOC Appeal No. 01a61992
(May 26, 2006). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record, the
Commission finds that the request meets the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to grant the
request.
BACKGROUND
Complainant applied for the position of Postmaster of Milledgeville, GA,
an EAS 21 position, which would have been a promotion for complainant.
When complainant was not selected, he filed an EEO complaint alleging
discrimination on the basis of reprisal (prior EEO activity, and acting
as an EEO representative). The matter was investigated and complainant
requested and received a hearing before an EEOC Administrative Judge.
Following the hearing, however, the AJ dismissed the claim for untimely
EEO counselor contact. In her decision, without analysis, the AJ noted,
however, that even if complainant was timely, he did not prove his claim
of discrimination.
In its previous decision, the Commission focused on the timeliness issue
and found that the counselor contact was timely. The previous decision
remanded the matter to the agency.
On request for reconsideration, the agency contends that the matter
should not have been remanded because a hearing was held and the AJ had
ruled on the merits of the complaint.
ANALYSIS
As an initial matter, the Commission finds that its determination that
the EEO Counselor contact was timely is correct, and for that reason,
the previous decision is affirmed. Nonetheless, we note that since
a hearing was held there is no point at this time in remanding the
matter. Thus, we will address the merits of the claim and give the
parties the opportunity to request reconsideration of the merits.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, 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).
In the instant case, even if complainant could establish a prima facie
case of reprisal based on his previous EEO activity and for acting as a
representative, he has not shown that the agency's reasons for selecting
the female were a pretext for reprisal. Rather the record shows that
there had been previous concerns with complainant's performance in the
facility in question and that the selectee was very well qualified -
she laterally transferred to the position in question from California and
had held higher graded positions. To the extent that complainant raises
the issue of her submitting her request for a transfer by using a fax,
the record indicates that such requests are handled differently than an
application for a position. The Commission notes that complainant did
not argue that his qualifications were superior to those of the selectee.
As such, the Commission finds that complainant was not retaliated against
as alleged.
CONCLUSION
After reconsidering the previous decision and the entire record, the
Commission finds that the agency's request meets the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to grant
the request. The decision of the Commission in Appeal No. 01A61992
is affirmed with respect to the issue of timeliness. However, because
the merits of the claim are being addressed for the first time in this
request, reconsideration rights are again being given.
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
August 22, 2006
__________________
Date
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05A60892
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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05A60892