James W. Chesney, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01a24401 (E.E.O.C. Oct. 27, 2003)

01a24401

10-27-2003

James W. Chesney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James W. Chesney v. United States Postal Service

01A24401

10/27/03

.

James W. Chesney,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24401

Agency No. 4C-150-0030-01

Hearing No. 170-A1-8526X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final order.

The record reveals that complainant, a Station Manager at the agency's

Pittsburgh, Pennsylvania facility, filed a formal EEO complaint on

December 21, 2000, alleging that the agency had discriminated against

him on the bases of sex (male) and reprisal for prior EEO activity when

between August and December 2000, he was denied a higher level detail

and career advancement.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). As to the reprisal issue only, the AJ issued

a decision without a hearing, finding no discrimination. Just prior

to issuing her decision without a hearing, the complainant withdrew his

request for a hearing on the sex discrimination allegation, and instead

opted for a final agency decision.

Complainant alleged that he was removed from the detail due to

his protected activity, which consisted only of having been named

as a discriminating official in a prior EEO complaint filed by a

co-worker. However, the AJ found that complainant's participation in

the investigation as the individual accused of discrimination did not

constitute protected activity under the regulations. Accordingly, the AJ

found complainant failed to establish a prima facie case of retaliation.

Assuming, arguendo, that the complainant did establish an inference of

retaliation, there was no dispute of material facts. Specifically, the

record revealed complainant was placed into the position of Manager of

the Mount Oliver Branch Office on a temporary detail. The Mount Oliver

Postmaster averred that upon learning the complainant moved all of his

personal objects into the office, she removed complainant from the detail

until a permanent selection could be made due to the appearance that

complainant was preselected into the position. Another individual was

temporarily placed into the detail, and the position was re-posted. A

few months later, complainant was eventually selected for the position.

The AJ found complainant presented no evidence that would establish

the agency's reasons for its actions were a pretext for retaliation.

Accordingly, the AJ determined complainant was not discriminated against

on the basis of retaliation.

On July 24, 2002, the agency issued a final order that implemented the

AJ's decision. Furthermore, the agency determined that complainant

failed to establish that he was subjected to sex discrimination because

he failed to show how he was treated differently than an individual

outside of his protected class. Indeed, the individual who replaced

complainant was a male.

On appeal, complainant restates arguments previously made in his Motion

in Opposition to a Decision Without a Hearing. Specifically, complainant

argues that he engaged in protected activity when he participated in

an investigation where he was the accused official. In response, the

agency restates the position it took in its FAD, and requests that we

affirm its final order.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes. The Commission has previously

held that a person's "status as the individual incorrectly accused of

discrimination in another employee's EEO complaint, does not, without

more, constitute protected activity." Jarmin v. Department of the Navy,

EEOC Request No. 05930019 (December 23, 1993). A review of the record

indicates that complainant's claim of reprisal is based solely on his

status as the individual named as the responsible management official

in another employee's EEO complaint. We find that this status is not

protected activity and that such a claim of reprisal fails to state a

claim of discrimination under 29 C.F.R. � 1614.103(a).

Furthermore, we agree with the agency that complainant failed to raise

an inference of sex discrimination. Accordingly, the agency's final

decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

10/27/03

Date