0120070782
04-01-2009
Keith L. Kloock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith L. Kloock,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070782
Hearing No. 471-2006-00069X
Agency No. 4J481009905
DECISION
On November 22, 2006, complainant filed an appeal from the agency's
October 27, 2006 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Wyandotte Post Office in Southgate,
Michigan. The record reveals that complainant has filed several EEO
complaints in the past, which have been appealed to the Office of Federal
Operations.
On July 25, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of disability (herniated disc,
anxiety, and depression) and in reprisal for prior protected EEO activity
when the agency disobeyed instructions from Office of Personnel Management
(OPM) regarding his disability retirement.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ's decision to dismiss his
hearing request with prejudice was not appropriate. Complainant also
contends that he has continued to suffer disability discrimination and
retaliation by the agency after years of litigation. Complainant states
that in August 2004, he entered into a settlement agreement with the
agency which provided for his placement into a higher-graded position,
while complainant agreed to submit an application for disability
retirement. He contends that agency officials failed to exhaust
his sick leave before separating him pursuant to OPM's instructions.
Complainant also maintains that the agency failed to properly calculate
his salary for his disability annuity. In response, the agency maintains
that any miscalculations were not intentional, and have been rectified
since the events in question.
ANALYSIS AND FINDINGS
As an initial matter, we will address complainant's contentions regarding
the AJ's dismissal of his hearing request with prejudice. The record
reveals that on August 18, 2006, complainant requested that he be allowed
to withdraw his hearing request without prejudice because he believed
the AJ denied him fair access to the administrative process. In his
letter to the AJ, he stated that he desired a final agency decision,
which he could then appeal. Accordingly, we find that complainant was
well aware of the consequences of his actions, and find no reason to
remand this matter for a hearing.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
The record reveals that on or about August 26, 2004, complainant filed for
disability retirement. In a letter dated June 8, 2005, complainant was
notified that his disability retirement application had been approved.
Among other matters, OPM informed complainant that if he had sick
leave remaining, it should be exhausted prior to the last day of pay.
Complainant argues that this was never done, and that the agency failed
to properly calculate his annuity payments because they did not use the
higher salary provided pursuant to the settlement agreement.
However, complainant failed to produce any evidence that any of the
officials who worked on his disability retirement application harbored any
discriminatory or retaliatory motive against complainant. Although the
Manager, Personnel Services, who was in charge of disability retirement
applications stated that he was aware that complainant had received an
EEO settlement, he was unaware of the specifics or complainant's medical
restrictions. The Manager also averred that he was not aware that OPM
had advised that complainant's sick leave should be used before his last
day of pay. Further, in a supplemental affidavit, he averred that he
had recently learned that complainant should have been paid at a higher
salary, and that complainant's pay should be recalculated. The Manager
explained that this would be done soon. Complainant's supervisors, who
were aware of complainant's prior EEO activity and medical restrictions,
averred that they had no knowledge about the method by which complainant's
annuities were calculated.
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 Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance 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), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or 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 25, 2000).
After a careful review of the record, we find complainant failed
to establish a prima facie case of retaliation because he failed to
establish a nexus between his prior EEO activity, and his application
for disability retirement. Assuming arguendo, that complainant is an
individual with disability; we find that he also failed to establish a
prima facie case of disability discrimination because he failed to raise
facts necessary to establish an inference of discrimination.
We further find that the agency articulated a nondiscriminatory reason
for its actions; namely, that if the disability retirement package was
miscalculated, it was due only to negligence, and further, that in light
of receipt of corrected information, it would be re-processed correctly.
Complainant produced insufficient evidence of pretext which would prove,
more likely than not, that his disability retirement was miscalculated
intentionally due to prohibited discrimination. Although he contends
that the agency discriminated against individuals like himself, who have
injuries and disabilities, he failed to create a nexus between his prior
EEO activity, his presumed status as an individual with a disability,
and his retirement application. Complainant failed to establish that the
individuals who were responsible for prior discrimination knew anything
about the specifics of his disability retirement application, and none
of the individuals responsible for the retirement package were shown
to harbor any discriminatory motive. In short, complainant provided
insufficient evidence that his annuity was intentionally miscalculated
due to his prior EEO activity and/or his disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 1, 2009
Date
1 The record reveals that the agency originally dismissed this claim as
a collateral attack on another agency's proceedings. However, on appeal
of that decision, the Commission found that complainant essentially
was alleging that agency officials discriminatorily deprived him of his
sick leave and submitted false information to OPM, which had an adverse
impact on his annuity payments. See Keith Kloock v. United States Postal
Service, EEOC Appeal No. 01A55873 (February 7, 2006).
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0120070782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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