01a55802
12-02-2005
Angel M. Lebron, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angel M. Lebron, Jr. v. United States Postal Service
01A55802
December 2, 2005
.
Angel M. Lebron, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55802
Agency No. 1F-853-0074-03
DECISION
Complainant initiated an appeal from a final decision concerning his
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final decision.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 1, 2003, alleging that he was discriminated
against on the bases of race (Hispanic), national origin (Puerto Rico),
sex (male), disability (neck - herniated disc), age (49), and reprisal
for prior EEO activity when:
In June 2003, complainant was promoted to the position of Maintenance
Electrician and not allowed to withdraw from the award notice.<1>
As we noted in Lebron v. United States Postal Service, EEOC Appeal
No. 01A54241 (November 4, 2005), complainant was previously employed as
a Maintenance Operations Support Clerk (MOSC), Level 5, at the agency's
Phoenix, Arizona Processing and Distribution Center (PD&C), with scheduled
days off of Saturday/Sunday. Complainant's name appeared on the Promotion
Eligibility Register (PER) for the position of Maintenance Electrician,
Level 6. On June 18, 2003, the agency posted a Notice of Intent for
the position of Letter Box Mechanic. Employees were advised that if
they wished to remove their names from the PER, they could do so at any
time prior to the close of the announcement, which was June 25, 2003
at 4:30 p.m. The Letter Box Mechanic position was awarded to another
employee (Employee A). Employee A had been a Maintenance Electrician,
Level 6. His now-vacant position was awarded to the next eligible
employee on the PER, which was complainant. Upon learning that he
was to be promoted to the level 6 position, complainant attempted to
retroactively remove his name from the PER. That request was denied,
and the instant complaint followed.
As a result of being awarded the Maintenance Electrician position,
complainant was required to take a basic electricity course as a
prerequisite for another course which was required for the Maintenance
Electrician Level 6 position. Complainant failed the course. Pursuant to
the collective bargaining agreement (CBA), he was required to return to
his former occupation and group level.
Subsequently, complainant's MOSC Level 5 position was reposted with
different scheduled days off to provide weekend coverage. The reposted
position was awarded to the senior most qualified employee on the
Maintenance Support Clerk Level 5 PER.
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. When complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), the agency issued a final decision, dated July 29, 2005.
In its decision, the agency concluded that, assuming complainant
had established a prima facie case of discrimination (on any or all
alleged bases), complainant was unable to show any connection between
his protected classes and the agency's decision to promote him to the
position of Maintenance Electrician as a result of the residual vacancy
created after the promotion of complainant's co-worker (Employee A)
to the position of Letter Box Mechanic.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
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. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of race, sex, age or national
origin discrimination. Specifically, we find that complainant failed
to identify any similarly situated employees, not in complainant's
protected classes, who were treated any better than complainant was when
he was promoted to the position of Maintenance Electrician. Moreover,
we concur with the agency that complainant has not shown that his race,
sex, age or national origin played any role in the agency's decision to
fill the position of Maintenance Electrician as it did, following the
promotion of Employee A.
Additionally, the Commission notes that assuming complainant had
established that was a qualified individual with a disability (and we
make no determination that complainant either is, or is not a qualified
individual with a disability under Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.),
complainant has not identified any similarly situated employee or
employees, with no disabilities, who received preferential treatment under
similar circumstances. We find no evidence showing that the selecting
officials considered complainant's medical limitations in connection with
their decision to fill the residual vacancy (Maintenance Electrician)
from the promotion eligibility list as described in the agency's final
decision. Significantly, complainant does not deny that he was at the
top of the promotion eligibility list. Complainant argues that the
residual vacancy was never posted and he did not have an opportunity to
decline the promotion to the level 6 position, as he had in the past.
We find no connection, however, between complainant's disability and
the agency's actions.
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).
With respect to the reprisal, we find that complainant has frequently
participated in the EEO process<2>, and the key agency officials
responsible for promoting complainant in July 2003 do not deny knowledge
of complainant's prior EEO activity. Given the frequency of complainant's
EEO activity, we find that complainant has established a prima facie case
of reprisal. Namely, complainant participated in the EEO process, agency
officials were aware of his participation, and complainant was subjected
to (what he considered to be) an adverse employment action shortly after
his EEO activity. Nevertheless, we find complainant has failed to show
that the agency's reasons for its actions, namely, that complainant was
promoted because he was at the top of the promotion eligibility list,
and failed to decline the promotion in a timely fashion, were a pretext
to mask discrimination and that reprisal was the real reason the agency
promoted complainant to the position. In reaching this conclusion, the
Commission notes that complainant has submitted on appeal, a letter to
the agency from Employee A, who was, as was complainant, also surprised by
the agency's decision to reassign him to the Letter Box Mechanic position.
We note that both complainant and Employee A state that they did not see
the posted vacancy announcement, but Employee A admits he was informed
that it was indeed posted. We find the evidence supports the agency's
determination that complainant was promoted without regard to any alleged
discriminatory basis.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final decision finding
no discrimination.
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
December 2, 2005
__________________
Date
1Previously, in Lebron v. United States Postal
Service, EEOC Appeal No. 01A40593 (January 13, 2005), we redefined
complainant's claim thus, and noted that complainant had withdrawn a
second claim raised in the same complaint. In that decision, we reversed
the agency's initial dismissal of the complaint pursuant to 29 C.F.R. �
1614.107(a)(1), and remanded the complaint for investigation.
2The Commission notes that complainant has filed more than 20 appeals
since 1994.