01a42476
11-29-2004
Matthew V. Kokich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Matthew V. Kokich v. United States Postal Service
01A42476
November 29, 2004
.
Matthew V. Kokich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42476
Agency No. 4H335018502
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision regarding 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.
During the relevant time, complainant was employed as a Letter Carrier,
at the agency's Sulphur Springs Station, Tampa, Florida. On May 31,
2002, complainant contacted the EEO office claiming that he suffered
discrimination in reprisal for prior protected activity when on May 8,
2002, he was denied the approval of dependent care leave under the Family
Medical Leave Act (FMLA). Informal efforts to resolve complainant's
concerns were unsuccessful.
On August 5, 2002, complainant filed the instant formal complaint.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). On April 22, 2003, complainant withdraw
his request for a hearing and requested to receive a final decision by
the agency. The agency issued a final decision on February 2, 2004,
that is the subject of the instant appeal.
In its final decision, the agency found that complainant failed to
establish a prima facie case of discrimination on the basis of reprisal.
The agency found that even assuming that complainant established a
prima facie case of reprisal, complainant failed to rebut the agency's
articulated legitimate, non-discriminatory reason for its actions.
The agency's FMLA Coordinator stated in an affidavit that complainant's
request for FMLA was denied because complainant's daughter does not
qualify as a dependent under Federal regulations. The agency noted that,
for purposes of agency policies implemented to comply with the FMLA,
Section 515.2.a of the Employee Labor Relations Manual defines a son or
daughter as �under 18 years of age or who is over 18 and incapable of
self-care because of mental or physical disability.� The agency stated
that complainant's leave request was to take care of his 22-year old
daughter but that complainant failed to provide proper documentation
that his daughter is disabled pursuant to the FMLA regulations.
The burden shifted to complainant to show the reasons provided by
the agency were a pretext for discrimination, through either direct or
circumstantial evidence. According to the agency's decision, complainant
failed to present any evidence showing that the agency's reasons was
pretext. Therefore, the agency concluded that complainant failed to
prove that he was discriminated against on the basis of reprisal for
prior protected activity.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo, that complainant has establish a prima facie case
of reprisal discrimination, we determine that the agency articulated
legitimate, non-discriminatory reasons for its actions. Here, the agency
found that complainant was not eligible for FMLA after determining that
his daughter did not qualify as a dependent under Federal regulations.
The Commission determines that the agency articulated legitimate,
nondiscriminatory reasons for its action, which complainant failed to
show were a pretext for discrimination.
Accordingly, after a careful review of the record, we AFFIRM the agency's
decision.
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
November 29, 2004
__________________
Date