01971499
06-21-1999
Gilbert Guerra, Jr., Appellant, v. William J. Henderson Postmaster General, United States Postal Service, Agency.
Gilbert Guerra, Jr. v. United States Postal Service
01971499
June 21, 1999
Gilbert Guerra, Jr., )
Appellant, )
) Appeal No. 01971499
v. ) Agency No. 4G-780-1126-95
) Hearing No. 360-95-8360X
William J. Henderson )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 discrimination based
upon reprisal (prior EEO activity) when on January 11, 1995, he was
denied a transfer to the Edinburgh Post Office facility. The Final
Agency Decision (FAD) was received by appellant on November 6, 1996.
The appeal was filed on December 6, 1996. Accordingly, the appeal is
timely, (See 29 C.F.R. �� 1614.402(a)and 1614.604(b)), and is accepted
in accordance with EEOC Order No. 960.001.
Appellant began his employment with the agency in 1979 as a letter carrier
in Edinburgh, Texas. During the relevant time period appellant held the
position of part-time flexible clerk. In November, 1994, pursuant to
a settlement of a prior EEO complaint, appellant was transferred to the
Austin, Texas Post Office facility as a part-time flexible distribution
clerk. On January 2, 1995, appellant wrote to the Edinburgh Postmaster
(P1) requesting a transfer back to Edinburgh. On January 9, 1995, P1
wrote to appellant rejecting his transfer request because the Edinburgh
Post Office had no vacancies at that time.
On February 7, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ). A hearing took place on
April 23, 1996. Thereafter, on May 29, 1996, the AJ issued a recommended
decision of no discrimination.
The AJ determined that appellant failed to present a prima facie case of
reprisal discrimination. Specifically, the AJ determined that appellant
could not establish a causal connection between his EEO activity and the
denial of his transfer request to Edinburgh since it had been nearly five
years between the appellant's EEO activity against P1 and the denial of
the request for transfer. The AJ noted that appellant showed no other
evidence of retaliation.
The AJ, nevertheless, found that the agency articulated a legitimate,
non-discriminatory reason for its employment action and that appellant
failed to prove pretext or retaliatory motive. Specifically, the agency
stated that it denied appellant's request for transfer because there
were no vacancies at that time. The record shows that P1 had similarly
denied several other employees, with no prior EEO activity, their request
for transfer due to the lack of vacancies. The AJ further noted that
the collective bargaining agreement prohibited transfers unless the
employee has served at least eighteen months in the Austin Post Office.
Appellant had only served approximately two months at the Austin Post
Office at the time of his request. Lastly, the AJ rejected appellant's
assertion that P1 should have fired two transitional letter carriers at
the Edinburgh Post Office since the agency had done so previously pursuant
to a settlement agreement. The AJ found that appellant, who occupied a
distribution clerk position, could not fill the slot of a letter carrier.
Moreover, the agency had no obligation to fire two transitional letter
carriers in order to transfer appellant. Accordingly, the AJ found that
appellant did not prove reprisal discrimination.
On October 18, 1996, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981); Hochastdt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
The Commission concludes that, in all material respects, the AJ accurately
set forth the relevant facts and properly analyzed the case using the
appropriate regulations, policies, and laws. Based on the evidence of
record, the Commission discerns no basis to disturb the AJ's finding of
no discrimination.
In addition, we find appellant's contentions on appeal to be without
merit. For example, appellant claims that he was improperly denied
certain witnesses to testify at the hearing. Yet, he fails to identify
the witnesses and the relevance of their testimony. Accordingly, the
Commission discerns no basis to reverse the AJ's decision. Appellant also
asserts that contrary to the AJ's findings, the collective bargaining
agreement did not prohibit a transfer since appellant fell under the
"local transfer" exception and, accordingly, he did not have to serve
at least eighteen months before he was eligible for such a transfer.
While the AJ referenced the collective bargaining agreement in support
of his decision, it is important to note that agency's explanation for
its transfer denial did not suggest that appellant was not eligible,
but rather that there were no vacancies. Accordingly, we find that
appellant's eligibility for transfer is not dispositive in this matter.
Lastly, appellant asserts that the last EEO activity which involved P1,
took place five months before the transfer denial<1> and, accordingly,
contrary to the AJ's findings, a causal connection was established.
Assuming, arguendo, that appellant established a causal connection between
his prior EEO activity and denial of his transfer, such fact establishes
only a prima facie case of reprisal discrimination, but does not affect
the ultimate determination of no discrimination, since appellant has
failed to present evidence which proves that the justification provided
by the agency for its employment decision was pretextual or that it was
motivated by reprisal discrimination.
Accordingly, for the reasons stated above, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision finding no discrimination.
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. � 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 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:
6/21/99
_______________ __________________________________
DATE Carlton M. Hadden, Acting Director
1The AJ found that the relevant prior EEO activity took place 5 years
before the transfer denial.