01971057
05-20-1999
Timothy Fitzgerald, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region),) Agency.
Timothy Fitzgerald v. United States Postal Service
01971057
May 20, 1999
Timothy Fitzgerald, )
Appellant, )
) Appeal No. 01971057
v. ) Agency No. 4-J-604-1284-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid-West Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant
alleges that he was discriminated against in reprisal for prior EEO
activity when he received an unfavorable supervisory evaluation on an
application for promotion. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Part-Time Flexible City Letter Carrier at the agency's facility
in Berwyn, Illinois. In May 1995, appellant applied for a promotion
to the position of Supervisor of Customer Services, EAS-16, at the
agency's facility in Downers Grove, Illinois. When appellant received
an unfavorable evaluation for the promotion, he sought EEO counseling
and subsequently filed a formal complaint on October 25, 1995. At the
conclusion of the investigation, appellant initially exercised his right
to a hearing before an EEOC Administrative Judge but subsequently withdrew
his request and requested that the agency issue a final decision.
The FAD concluded that appellant failed to establish a prima facie case
of retaliation because he presented no evidence that the Responsible
Management Official (RMO), a Supervisor of Customer Services who completed
the evaluation, was aware of, or had any connection to, appellant's
prior EEO activity. The FAD also concluded that even if appellant had
established a prima facie case of discrimination, he failed to prove
that the agency's legitimate, nondiscriminatory explanation for its
action was a pretext. It is from this decision appellant now appeals.
Appellant did not submit a statement in support of his appeal. The agency
requests that we affirm its FAD.
Under the standards set forth in McDonnell Douglas v. Green, 411 U.S. 792
(1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-256 (1981) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission disagrees with the agency that appellant failed to establish a
prima facie case of retaliation discrimination. Appellant initiated EEO
counseling in March 1995, concerning an incident involving annual leave.
The agency official involved in the March 1995 dispute was a Supervisor
of Customer Services in the same facility as the RMO who completed
appellant's evaluation in May 1995. The record establishes that, in
the course of preparing the evaluation, the RMO spoke with appellant's
co-workers and supervisors. Considering the temporal proximity of the
two incidents; the involvement of two Customer Service Supervisors at
the same facility; and that the RMO does not specifically deny knowledge
of the March 1995 incident,<1> we find that appellant has met his burden
of establishing a prima facie case.
However, we agree with the agency that appellant failed to establish that
the agency's legitimate, nondiscriminatory explanation for the unfavorable
evaluation was a pretext for discrimination. Having observed appellant
interact and perform at work, the RMO found that, while appellant was
competent and knowledgeable about postal operations and procedure, he
maintained a negative, antagonistic and adversarial attitude towards his
co-workers and management. Appellant has offered no evidence to support
a finding that the RMO was insincere or was motivated by a retaliatory
animus.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The RMO specifically denies knowledge of appellant's prior EEO activity
at other agency facilities but is silent concerning the March 1995
incident at the Berwyn, Illinois facility.