01A23232
05-29-2003
Jose R. Delgado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.
Jose R. Delgado v. United States Postal Service
01A23232
May 29, 2003
.
Jose R. Delgado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A23232
Agency No. 4A-006-0060-00
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. The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was
employed as a Bulk Mail Technician, PS-06, at the Caribbean District Post
Office in San Juan, Puerto Rico. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 28, 2000, alleging that he
was discriminated against on the bases of race (Hispanic), national origin
(Puerto Rican), sex (male), and in reprisal for prior EEO activity when:
(1) on an unspecified date, he was denied upward mobility;
on May 25, 2000, his supervisor questioned him about his whereabouts;
on May 30, 2000, his supervisor questioned him about meters;
on June 12, 2000, his supervisor followed him to the printing room; and
on June 15, 2000, he was notified that he had to report back to his
BMT position.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, national origin, sex, or retaliatory
discrimination. Specifically, the agency found that complainant
did not demonstrate that he was treated differently than a similarly
situated employee, outside of his protected groups. Furthermore, the
agency concluded that there is no evidence in the record that supports a
conclusion that complainant engaged in prior EEO activity. On appeal,
complainant contends, among other things, that he was not allowed to
advance within the Postal Office, due to discrimination.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination. He can do this by establishing that similarly
situated individuals outside of his protected classes were treated more
favorably than he was or by setting forth some other evidence from which
a reasonable fact-finder could draw an inference of discrimination.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Complainant failed to establish that any similarly situated employee
out of his protected group was treated more favorably under similar
circumstances. Further, he did not set forth any other evidence from
which we could draw an inference of discrimination. Accordingly, we
conclude that complainant has failed to establish a prima facie case of
race, national origin, or sex discrimination.
We turn now to complainant's claim of reprisal discrimination.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000). We find that the record does not indicate that
complainant engaged in prior EEO activity. Accordingly, complainant
has failed to establish a prima facie case of retaliation.
Therefore, after a careful review of the record, including arguments
and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
May 29, 2003
__________________
Date