01972631
06-24-1999
Daniel L. Branson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Daniel L. Branson, )
Appellant, )
) Appeal No. 01972631
v. ) Agency No. 1-H-329-1024-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. 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 on the bases of race
(Caucasian), national origin (Anglo-Saxon), color (White), sex (Male)
and in reprisal for prior EEO activity when on September 8, 1995, he was
issued a Letter of Warning (LOW). The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was
employed as a Distribution Clerk at the agency's Mid Florida Processing
and Distribution Center. Believing he was discriminated against as
referenced above, appellant sought EEO counseling and subsequently filed a
complaint on December 23, 1995. At the conclusion of the investigation,
appellant was granted thirty days to request a hearing before an EEOC
Administrative Judge. When appellant did not timely request a hearing,
the agency issued its final decision.
The FAD disposed of this claim on alternative grounds. Initially, the
FAD concluded that appellant's allegation was moot because: (1) through
a Step 3 Grievance Process, the LOW was expunged from appellant's records;
and (2) appellant has been removed from the agency. Upon review, we note
that appellant requested compensatory damages for any and all injuries he
sustained as a result of the LOW. If appellant were to prevail on his
complaint, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993). Because appellant requested compensatory damages,
the agency should have requested that appellant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse action at issue. See Benton
v. Department of Defense, EEOC Appeal No. 01932422 (December 10, 1993).
Accordingly we find that the agency's dismissal of the allegation pursuant
to 29 C.F.R. � 1614.107(e) was improper.
However, we agree with the agency's conclusion that appellant failed
to establish a prima facie case of discrimination on any of his
alleged bases. Appellant's supervisor testified that he issued the
LOW for improper conduct, i.e. spreading rumors, in violation of Part
666.2 of the agency's Employee and Labor Relations Manual. Based on 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), we find that appellant
failed to establish that he was treated less favorably than similarly
situated employees outside of his protected classes. Although appellant's
supervisor could not recall issuing a LOW for violations of Part 666.2 of
the agency's Employee and Labor Relations Manual, he testified to issuing
similar discipline to employees outside of appellant's protected classes.
Appellant also failed to establish either a temporal or a causal link
between his prior EEO activity and the issuance of the LOW. Therefore,
after a careful review of the record, including appellant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD as CLARIFIED.
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:
June 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations