01994169
12-19-2000
Jos� Ginete, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jos� Ginete v. United States Postal Service
01994169
December 19, 2000
.
Jos� Ginete,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994169
Agency No. 1A-111-0064-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of national origin (Puerto Rican) and retaliation
(prior EEO activity) when, on April 7, 1997, following an accident,
complainant was placed in non-driving status; and on April 23, 1997,
he issued a 14-day suspension for being at fault in the April 7, 1997
accident.
The record reveals that during the relevant time, complainant was employed
as a Motor Vehicle Operator (MVO), PS-5, at the agency's Brooklyn, New
York facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on April
6, 1998. At the conclusion of the investigation, complainant was informed
of his right
to request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614, the agency
issued a final decision.<2>
In its FAD, the alleged Responsible Management Official (RMO) testified
that the MVO national agreement provides for the revocation of driving
privileges as an administrative action where a driver has been deemed
to have operated a vehicle in an unsafe manner. The RMO averred that
he exercised his authority to apply this provision in an equitable
manner where an employee's five year driving safety history indicated
a need to do so. The RMO stated that complainant has not been singled
out and that he was unaware of the complainant's prior EEO activity.<3>
Furthermore, the agency noted that the disciplinary action taken against
complainant was specifically in response to complainant's backing into
another vehicle which was backing into the loading platform at the
Kew Gardens Station. At that time, complainant had a record of prior
discipline which was considered in determining the appropriate penalty.
In conclusion, the agency found that the complainant failed to show how he
was treated differently than any other employee, nor did the complainant
prove that �but for� his previous EEO activity, that he would not have
been disciplined.
On appeal, complainant raises, in detail, his dissatisfaction with the
quality in which his complaint was processed. In support, he submits
copies of three proposed failed settlement agreements between himself
and the agency. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima facie
case of national origin discrimination because complainant has failed
to establish that he was treated differently than similarly-situated
employees. Moreover, the Commission further finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that record demonstrates that the complainant
has been involved in two at-fault accidents with a twelve-month period
and four accidents within five years.
In order to establish a prima facie case of reprisal, a complainant 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 contemporaneous 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
(D. Mass.), aff'd 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). Even assuming complainant established a prima
facie case of reprisal, he failed to show that the agency's reasons for
its actions were reprisal for his protected activity.
On appeal, complainant raises his dissatisfaction with the processing of
his complaint. He argues, among other things, that the EEO investigator
failed to interview the comparative employees named in his complaint.
While he did name comparative employees who were not interviewed,
the record includes records of the complainant's and the comparative
employees' driving history, in addition to complainant's testimony. The
record shows that complainant had more motor vehicle accidents within
the past five years than any of the comparatives named in his affidavit.
Even assuming these comparatives had been interviewed, we fail to see how
such evidence would relate to complainant's claims of discrimination.
Similarly, complainant argues that the findings of a prior investigator
were not included in the package submitted to Connecticut.<4> However,
complainant has failed to indicate what these findings were or how they
may have affected this present complaint.
The complainant also makes reference to three thwarted proposals of
settlement offered by the agency and the complainant's contentions with
each. However, �[s]ettlement negotiations, including any statements or
proposals, are to be treated as confidential and privileged to facilitate
a candid interchange to settle disputes informally.� Harris v. Department
of the Navy, EEOC Request No. 05941002 (March 23, 1995).
In addition, complainant now raises new claims which were not previously
raised with the EEO counselor or in his formal complaint; for instance,
being denied union representation, being removed from his craft, as well
as change of pay location and hours during the time the agency removed
him from his craft, among other things. Complainant is advised that if he
wishes to pursue, through the EEO process, these claims raised for the
first time on appeal, he should initiate contact with an EEO Counselor
within 15 days after he receives this decision. The Commission advises
the agency that if complainant seeks EEO counseling regarding the new
claims within the above 15-day period, the date complainant filed the
appeal statement in which he raised these claims with the agency shall
be deemed to be the date of the initial EEO contact, unless he previously
contacted a counselor regarding these matters, in which case the earlier
date would serve as the EEO Counselor contact date. Cf. Alexander
J. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).
After a careful review of the record, we find no evidence, and the
complainant has not established, that the processing of complainant's
complaint affected the outcome of his complaint. The agency's final
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 19, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record reflects that on February 1, 1999, the complainant responded
to the Report of Investigation; however, he did not request either a
hearing or a final agency decision on the matter, thus, triggering the
agency's issuance of a final decision in accordance with Commission
regulations.
3 Complainant indicated that his prior EEO activity was settled by
another supervisor in 1993.
4 We assume this refers to the Investigating Office.