01971923
10-08-1999
Dennis Dacey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis Dacey v. United States Postal Service
01971923
October 8, 1999
Dennis Dacey, )
Appellant, )
) Appeal No. 01971923
v. ) Agency No. 5F-1271-92
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
On December 28, 1996, Dennis Dacey (hereinafter referred to as appellant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) from a final decision of the agency concerning his complaint
of discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The final agency decision
was received by appellant on December 2, 1996. Accordingly, the appeal
is timely, and is accepted in accordance with the provisions of EEOC
Order No. 960, as amended.
The issue on appeal is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against in reprisal for prior
EEO activity when he was issued a letter of removal on May 20, 1992.
Appellant filed a formal EEO complaint in July 1992, raising the
above-referenced allegation of discrimination. The agency accepted
appellant's complaint for processing, and conducted an investigation.
Thereafter, the agency provided appellant with a copy of the investigative
report, and notified him that he had a right to request a hearing before
an EEOC Administrative Judge (AJ). In September 1993, the AJ remanded
the matter to the agency for processing as a mixed case complaint.
The agency, asserting that it never received the AJ's remand, subsequently
issued a final decision dated November 29, 1996. The agency initially
found that the complaint was no longer a mixed case, because appellant
had been reinstated, without backpay, pursuant to a June 1993 decision
of a Arbitrator. The agency then concluded that appellant failed to
prove his allegation of discrimination. It is from this decision that
appellant now appeals.
A review of the record reveals that appellant, a Special Delivery
Messenger, failed to deliver all of the pieces of mail he was given on
March 24, 1992. Appellant's supervisor (Responsible Official 1; RO1)
stated that of those items, 10 were "guaranteed delivery" which subjected
the agency to liability for refunds. RO1 indicated that she received
one customer complaint regarding a piece of mail which appellant failed
to deliver on time. RO1 stated that she attempted to reach appellant by
radio, which was to have remained on in his vehicle at all times, but
was unable to contact him for two hours. RO1 indicated that appellant
became agitated and loud when she asked him to accompany her to check his
radio after he returned, and threatened to have her arrested. RO1 stated
that appellant then failed to answer questions about the incident or
cooperate with an investigation. RO1 stated that she and a co-worker
made simulated runs of the items given to appellant on March 24 and were
able to deliver all pieces in less time than appellant was on the route.
Appellant asserted that he was not trained on the use of the radio or
given instructions to remain in constant contact. Appellant stated
that another Carrier was out of radio contact for over one hour, but
was not disciplined. The Carrier confirmed appellant's contention.
Appellant noted that he did not refuse to answer questions regarding
his actions, but asked that the questions be submitted to his attorney
in writing. Appellant also disputed RO1's assertions concerning the
number of items he received on March 24. The Arbitrator, however, noted
that appellant acknowledged returning 10 pieces of mail to the facility.
Appellant was issued a notice of proposed removal on April 20, 1992,
charging him with failure to follow instructions; unsatisfactory work
effort; unacceptable conduct; and impeding the efficiency of agency
operations. Appellant was ultimately terminated effective May 25, 1992.
The Arbitrator determined that the charges were valid, and that a severe
disciplinary action was warranted. The Arbitrator instructed the agency
to reinstate appellant to a probationary position without backpay.
The Commission initially notes that issues concerning termination are
usually under the jurisdiction of the Merit Systems Protection Board
(MSPB). However, the Commission finds that in this case it would delay
justice and create unnecessary procedural complications to remand the
matter to the MSPB. Accordingly, the Commission will address the merits
of appellant's claim of discrimination. See Harrell v. Department
of the Army, EEOC Request No. 05940652 (May 24, 1995); Simon v. USPS,
EEOC Request No. 05890464 (September 27, 1990).
Appellant's complaint presents the issue of whether the agency subjected
him to disparate treatment on the basis of his prior EEO activity.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases
in which disparate treatment is alleged. These same standards apply
to complaints of reprisal. See Burrus v. United Telephone of Kansas,
Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
First, appellant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut appellant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, appellant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination.
Id.
The Commission notes that the McDonnell Douglas analysis need not
be adhered to in all cases. In appropriate circumstances, when the
agency has established legitimate, nondiscriminatory reasons for its
employment decision, the trier of fact may dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis,
that is, whether the complainant has proven by preponderant evidence
that the agency's explanations were a pretext for actions motivated
by prohibited discriminatory animus. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711 (1983).
In the case at hand, the agency stated that appellant failed to deliver
a number of pieces of mail on the date in question and failed to follow
instructions regarding maintaining contact with the facility. Further,
the agency stated that appellant then engaged in a confrontation
with his supervisor and failed to cooperate with an investigation.
Appellant asserted that one individual failed to maintain radio contact
for over one hour and was not disciplined; however, there is no evidence
that the named individual failed to deliver mail or was involved in a
confrontation with a supervisor. We find appellant's general contention
that others were not disciplined for failing to follow instructions to
be unpersuasive, as appellant has presented no specific information
to support such a conclusion. Therefore, the Commission finds that
appellant failed to prove, by a preponderance of the evidence, that he
was subjected to reprisal discrimination with regard to his termination.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Oct. 8, 1999
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations