01994873
09-18-2001
Daniel E. Vargas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel E. Vargas v. United States Postal Service
01994873
September 18, 2001
.
Daniel E. Vargas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994873
Agency No. 1F-908-0029-98
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. Complainant
alleged that he was discriminated against on the bases of religion
(Jewish), sex (male), age (45) and retaliation (prior EEO activity) when:
he was not issued an apron on July 24, 1998; and
he was issued a letter of warning dated July 30, 1998.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Mail Processing Machine Operator at the Long Beach
Post Office facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on October 13, 1998. At the conclusion of the investigation,
complainant was informed of the 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.
In its FAD, the agency concluded that complainant failed to prove a prima
facie case of discrimination based on religion, sex, age or retaliation.
Specifically, the agency stated that complainant was unable to demonstrate
that he had been treated differently than any other comparative employee.
The agency concluded that the record reveals a legitimate and
nondiscriminatory reason for its actions. The agency noted that
complainant was off of work on extended leave from May 9, 1998 through
June 26, 1998, and the aprons were handed out to culling unit employees
on June 13, 1998. The agency established that when complainant returned
to work, he was agitated about not receiving an apron, but that management
ordered an apron and gave it to him.
The agency further established that complainant was issued a letter of
warning dated July 30, 1998, for failure to follow instructions/failure
to perform his assigned duties in an efficient manner. The agency alleged
that on July 17, 1998, complainant was instructed by his supervisor to run
his AFCS #3 machine in a �Manual Mode,� and complainant instead ran the
machine in a �Cancel Mode Only.� The agency stated that complainant's
error resulted in a partial loss of the mail count. The agency also
alleged that this was not the first time that complainant had made such
an error.
CONTENTIONS ON APPEAL
On appeal, complainant contends that management did not give him an
apron. Complainant asserts that he and the union tried three times to
meet with management to obtain an apron or something of equal value,
but management refused to even meet with them. Complainant contends
that he never received an apron. Complainant further asserts that he
received the Letter of Warning in retaliation because he filed a union
grievance against his supervisor. Complainant contends that this is the
first time that he received a reprimand for management. Complainant also
contends that as a result of his good job, management gave him an extra
10 minute break every day.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). A complainant 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
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; 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
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that the complainant established a prima facie case
of discrimination based on his religion, sex, age and in reprisal for
prior EEO activity, the Commission finds that the agency has articulated
a legitimate, nondiscriminatory reason for its actions. As to claim
(1), the record reveals that the complainant was off work on extended
leave when aprons were handed out, and when complainant returned to work
management gave an apron to him. As to claim (2), the agency articulated
a legitimate, nondiscriminatory reason for issuing a Letter of Warning to
complainant, namely that complainant failed to follow instructions when
he received an order to run his machine in a �Manual Mode� but instead
he ran the machine in a �Cancel Mode,� which resulted in a partial lost
of the mail count.
The burden returns to complainant to establish that the agency's reasoning
was a pretext for discrimination. Upon review, the Commission finds
that the complainant has failed to do so. The
complainant merely argues that he never received the apron, however
the record reveals that on August 17, 1998, as a result of a settlement
agreement of Union Grievance IE-169-C-98, the agency ordered and gave to
complainant an apron. Complainant also contends that the agency issued a
Letter of Warning based on reprisal, but he failed to address the fact
that he received an order to run his machine in a �Manual Mode� but
instead ran the machine in a �Cancel Mode.� Finally, we also find that
complainant failed to show that the agency's action was in retaliation
for his prior EEO activity since he failed to demonstrate a causal
relationship between his Letter of Warning or the apron's issue and
his prior EEO activity. Therefore, he failed to show that the agency's
action was a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
September 18, 2001
__________________
Date