01A12196
06-07-2002
Raymond M. Chavira, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Raymond M. Chavira v. United States Postal Service
01A12196
June 7, 2002
.
Raymond M. Chavira,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A12196
Agency No. 4F913008900
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., 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 Postmaster, EAS-24, at the agency's Oxnard, California
Post Office. Complainant sought EEO counseling and subsequently filed
a formal complaint on May 24, 2000, alleging that he was discriminated
against on the bases of sex, national origin (Mexican-American), age
(D.O.B. January 18, 1945), and reprisal for prior EEO activity when:
(1) he was denied a detail to the Long Beach District Office on March
25, 2000;
he was denied previous details to the Van Nuys District Office;
he was questioned about his use of sick leave and asked for further
medical documentation;
he was accused of goading the APWU Union President and nepotism;
he was threatened to �do something else� On February 7, 2000;
he received a �met� expectations merit evaluation for FY'99 on February
17, 2000;
he was instructed to attend an Express Mail meeting unnecessarily on
April 6, 2000;
he was given a CBOP audit immediately upon his return to the Oxnard,
California Post Office in October 1999, and the budget was then changed
retroactively to the beginning of the year;
his office was �seeded� twice in one accounting period (January AP06);
and,
he was denied the transfer of a clerk.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing, but subsequently withdrew such request, and asked
that the agency issue a FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination because he failed to show that any
similarly situated individual, not in his protected class, was treated
more favorably under similar circumstances. The FAD proceeded to
assume arguendo, that complainant had established a prima facie case,
and found that the agency articulated legitimate non-discriminatory
reasons for its actions. The FAD further concluded that complainant
failed to establish that the agency's reasons were pretextual.
On appeal, complainant states that he has become aware of, and has
subjected to additional discriminatory actions since he filed his
complaint. For instance, since the filing of his EEO complaint, he
has not been asked to serve in any other capacity outside his office.
He notes that he received a message from the District Manager in
Santa Ana, California stating that he was �burning his bridges.�
Complainant additionally reiterates his contention that details were
given to individuals outside of his protected classes but not to him.
He additionally asserts his belief that the District Manager for Human
Resources and MPOO acted out of retaliation and animosity for him due to
his representation of another Postmaster in an EEO complaint against MPOO.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on the alleged purviews, we turn to the agency
to articulate legitimate, nondiscriminatory reasons for its actions.
Complainant's manager (M1) explained the following:
On or about March 25, 2000, M1 was asked to serve on a detail assignment
as Manager, Post Office Operations (MPOO), but was forced to decline
due to limited staffing. A request for complainant to serve on the
same detail was made and M1 responded negatively for the same reason.
See Record of Investigation (ROI), Affidavit B1.
Complainant has previously served on several detail assignments while
working for M1. Id. at B2.
Complainant never submitted the requested documentation for sick leave
usage. Nevertheless, complainant was provided with the sick leave
requested, and no disciplinary action was taken against him. Id.
M1 set up a meeting with complainant to discuss the number of grievances
by the APWU in Oxnard. During that meeting she stated that �it was not
good business to have family members working for him�as there had been
grievances and EEO's on that subject, with accusations of �favoritism
and nepotism.� Id. at B3.
She denies ever calling complainant to �threaten� him. Id. at B4.
As to the merit evaluation rating, complainant's office finished in
fifth place in their category in performance feedback. Complainant's
performance did not warrant a higher rating. Complainant had previously
received higher ratings from M1. Id. at B3.
The Express Mail Team Leader scheduled the April 6, 2000 meeting. It is
not true that the meeting was unnecessary, as there were scanning and
delivery problems that needed to be discussed. Id.
A Function 4 Audit (CBOP) was completed on every office, including
complainant's. Id at B2.
All offices are �seeded� at least once during an accounting period and
complainant's may have been �seeded� twice because of a �Zero Bundle;�
however, in any event, the alleged discriminating officials neither
schedule the offices to be �seeded,� nor can they control how often
offices are seeded. Id. At B2, C1.
Complainant was denied a clerk due to overstaffing and not achieving
the earned hours from the Function 4 audit. All offices were made whole
for the improper budget adjustments, including complainant's. Id. at B3.
We find that complainant has not met his burden of persuasion, by a
preponderance of the evidence, that the agency's reasons are pretext
for discrimination on the alleged bases.
With respect to complainant's assertion on appeal that he has been
subjected to additional discriminatory actions since he filed his instant
complaint, the Commission's regulations allow a complainant to amend
a complaint at any time prior to the conclusion of the investigation
to include issues or claims like or related to those raised in the
complaint. Additionally, after requesting a hearing, complainant may
file a motion with the EEOC Administrative Judge to amend a complaint
to include issues or claims like or related to those raised in the
complaint. 29 C.F.R. � 1614.106(d). However, the regulations do not
permit a complainant to raise a new claim on appeal. Therefore, even
assuming arguendo that complainant's allegations are related to his
instant claim, it would be inappropriate for the Commission to address
the allegation on appeal. Singleton v. Social Security Administration,
EEOC Appeal No. 01984784 (April 13, 2001). As the Commission can not
address an issue raised for the first time on appeal, complainant is
advised that if he wishes to pursue, through the EEO process, this
additional allegation, he must contact an EEO counselor within 15 days
after he receives this decision. The Commission advises the agency if
complainant seeks EEO counseling regarding this new claim within the
above 15 day period, the date complainant filed the appeal statement in
which he raised this allegation shall be deemed the date of initial EEO
contact, unless he previously contacted a counselor regarding this matter,
in which case the earlier date shall serve as the EEO counselor contact
date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998); Williams v. Department of the Navy,
EEOC Request No. 05A10183 (June 21, 2001).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, 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
June 7, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date