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