01970379
06-17-1999
James A. Burns, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
James A. Burns v. United States Postal Service
01970379
June 17, 1999
James A. Burns, )
Appellant, )
) Appeal No. 01970379
v. ) Agency No. 4F-926-1386-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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, Accordingly, the appeal is accepted in accordance with EEOC Order
No. 960,001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found appellant failed
to prove a prima facie case.
BACKGROUND
Appellant filed a formal complaint on January 4, 1996, alleging
discrimination on the basis of retaliation (prior EEO activity) when on
September 18, 1995 he was issued a letter placing him on administrative
leave, prohibiting him from entering the Irvine Post Office, and requiring
him to submit additional medical documentation before returning to duty;
and a copy of the letter was faxed to his attorney.
Appellant was on extended medical leave due to stress,<1> and states
that his doctor cleared him for return to duty in a letter sent to the
agency on September 18, 1995.<2>
The investigative file contains an affidavit from the District Manager
(the Manager) stating that appellant was placed on administrative leave
after a Postal Inspection Service administrative investigation found
financial and other irregularities at the Irvine office that occurred
under appellant's supervision,<3> and that to allow appellant onto
the premises while the investigation continued would be imprudent.
The manager states he consulted with the manager of Human Resources and
Injury Compensation before placing appellant on administrative leave
In its final agency decision the agency found that appellant failed
to prove a prima facie case based on retaliation when he was unable
to demonstrate that he had been treated differently than any other
comparable employee. The agency further asserts that it stated legitimate
and nondiscriminatory reasons for its actions. Appellant requested in
numerous EEO complaints filed that all communication be forwarded to
his attorney of record.
Postal Service rules and regulations state that any employee returning
to work after 21 or more days of sick leave must provide
medical evidence of their ability to return to work. Employees returning
to work after certain illnesses including mental and nervous conditions
must submit a physician's statement stating unequivocally that they are
fit for full duties without hazard to themselves or others.
On appeal, appellant submitted as proof of the manager's animus toward him
copies of letters including a February 1996, Proposed Notice of Removal
sent by the agency to the Manager for sexual harassment complaints filed
by female postal workers; the Manager's attorney's response which refers
to the agency's efforts to remove appellant; and an April 1996, Letter
of Decision demoting the Manager.
ANALYSIS AND FINDINGS
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Appellant lists agency actions which disadvantaged him subsequent to
and contemporaneous with his EEO activity. The record indicates that
appellant filed numerous prior EEO complaints, one of which was pending
at the time appellant filed the instant complaint, and that agency
officials were aware of that activity. The Commission finds that a
causal connection can be inferred based on the proximity in time between
the protected activity and the adverse action. Thus, appellant states
a prima facie case of reprisal.
The Commission finds that appellant's assertion of discrimination based
on reprisal is not, however, borne out by the affidavits of the parties,
which indicate that appellant was placed on administrative leave and
prohibited from the Irvine premises per a Postal Inspection Service
investigation. The agency sought certain medical documentation prior
to appellant's return as required by the agency's regulations and the
letter was faxed to appellant's attorney as per his earlier request.
Appellant fails to demonstrate that the reasons articulated by the
agency for its actions were a pretext for discrimination. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981).
Appellant provided a copy of a letter from the manager's attorney to
the agency alluding to the agency's and the manager's desire to remove
appellant, however there is nothing in the letter to suggest that any
animus toward appellant was based on his prior EEO activity.
We find that appellant has failed to show that the agency's actions
were in reprisal for his protected activity. Therefore, the agency's
determination that appellant failed to establish that the agency
retaliated against him or that its actions were based on discriminatory
animus was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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
June 17, 1999
________________________ _______________________
DATE Carlton Haddon, Acting Director
Office of Federal Operations
1 The record indicates appellant is being treated for stress, however,
appellant does not raise mental disability as a basis in his complaint.
2 The record does not contain a copy of the letter.
3 Appellant was Postmaster at the Irvine office.