01986111
12-01-1999
Dennis D. Petrack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.
Dennis D. Petrack, )
Complainant, )
) Appeal No. 01986111
v. ) Agency No. 1C-446-1012-94
) Hearing No. 220-97-5087X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atl. Region), )
Agency. )
)
DECISION
Complainant 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.<1> Complainant alleges that the agency discriminated against
him on the bases of race (White), national origin (Irish/ Spanish), sex
(male) and in reprisal for prior EEO activity. The Commission accepts
the appeal in accordance with EEOC Order No. 960.001. For the following
reasons, we affirm the FAD as clarified herein.
The record reveals that complainant, an EAS-16 Distribution Operations
Supervisor at the agency's Processing and Distribution Center in Canton,
Ohio filed seven formal EEO complaints with the agency. After the agency
investigated each individual complaint, complainant requested that his
complaints be consolidated for a hearing before an EEOC Administrative
Judge (AJ). The AJ granted complainant's request but issued a separate
Recommended Decision (RD) for each complaint.
In the instant complaint, the AJ addressed whether the agency
discriminated against complainant on the above referenced bases when
complainant was not included on the vacation schedule and when, in
January, he did not receive the appropriate �prorated merit amount�
(hereinafter �proration�).<2> The AJ found that complainant failed to
establish a prima facie case of discrimination on any basis regarding
the vacation schedule and that he failed to establish a prima facie case
of race, sex or national origin discrimination regarding the proration.
The AJ concluded, however, that complainant did establish a prima facie
case of retaliation regarding the proration and that the agency failed
to articulate legitimate, nondiscriminatory reasons for its action.
The AJ then recommended a finding of retaliation. In its final decision,
the agency dismissed the complaint for failure to state a claim, and in
the alternative, concluded that complainant failed to establish a prima
facie case of discrimination on any bases in regard to either claim.
It is from this decision complainant now appeals. On appeal, complainant
requests that we only review the FAD's rejection of the AJ's recommended
finding of retaliation. In response, the agency requests that we affirm
its final decision.
Initially, we reject the FAD's finding that complainant failed to state
a claim regarding the proration. Complainant asserts that because he
received his merit evaluation in November 1993, he lost monies due to him
for the period between August 1993 and November 1993. If the Commission
determines that there is merit to complainant's claim, the deprivation
of monies owed to him constitutes a loss with respect to a term of
his employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly,
we will address the claim on its merits based on the standards set
forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973) 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). Upon review, we agree with the agency
that complainant failed to establish a prima facie case of retaliation
regarding the proration. In reaching this conclusion, we find that
complainant had no entitlement to a larger proration and that there was
no causal connection between complainant's prior protected activity and
the fact that due to a nationwide restructuring of the agency between
1992-1993, complainant's merit anniversary date was changed from pay
period 17 to pay period 23. See Devereux v. United States Postal Service,
EEOC Request No. 05960869 (April 24, 1997). This restructuring affected
all step schedule employees' merit anniversary dates. Complainant
received $112.00 in January 1994, which represented the correct amount
of money due to him as a result of his changed anniversary date. We note
that had complainant's merit anniversary date remained in pay period 17,
he would have received a larger sum of money in January 1994. However,
there is no evidence from which we can infer retaliatory animus on the
part of the agency in connection with its nationwide restructuring.
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's findings
of no discrimination as clarified above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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:
December 1, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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:
__________________________
1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint
process went into effect. These regulations
apply to all federal sector EEO complaints
pending at any stage in the administrative
process. Consequently, the Commission
will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal.
The regulations, as amended, may also be found
at the Commission's website at WWW.EEOC.GOV.
2 The proration represented a sum of money received by all EAS step
schedule employees in pay period 2-1994 as a result of a nationwide,
agency restructuring. The sum due to the employees was calculated by
prorating the step increment for their grade based on the number of pay
periods since their last merit anniversary date.