01993909
12-11-2001
Marion G. Ferguson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marion G. Ferguson v. United States Postal Service
01993909
12-11-01
.
Marion G. Ferguson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993909
Agency No. 4G-720-0212-97
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged discrimination in reprisal for prior EEO activity
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., when, during the period June 2 through July 7,
1997, the Postmaster directed complainant's supervisor that complainant
was only to receive auxiliary assistance on the riding portion of
his route.
In its final decision, the agency found no discrimination. The agency
noted that complainant did not appear to have been disadvantaged by the
decision to provide auxiliary assistance only on the riding portion of his
route. The agency further noted that complainant was treated in the same
manner as the two comparative employees, who had no prior EEO activity.
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,
411 U.S. at 802). Specifically, in a reprisal claim, in accordance with
the burdens set forth in McDonnell Douglas, and 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 his protected
activity; (3) subsequently, he was subjected to adverse treatment by
the agency; and (4) a nexus exists between the protected activity and
the adverse action. Whitmire v. Department of the Air Force, 01A00340
(September 25, 2000).
Once complainant establishes a prima facie case, the burden then shifts to
the agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In this regard, the agency need only produce evidence
sufficient "to allow the trier of fact rationally to conclude" that the
agency's action was not based on unlawful discrimination. Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993).
Assuming for the sake of argument that complainant had established a
prima facie case of reprisal discrimination, the agency met its burden
to explain its actions: the agency explained that curbline delivery
was the preferred means of auxiliary assistance because there was
a specific vehicle available for this assignment (a right-hand drive
delivery vehicle), and because curbline delivery is more efficient than
park-and-loop, which involves walking. The agency also noted that the
two comparative employees, who had no prior EEO activity, were treated
the same as complainant in this regard.
Complainant has not adduced evidence to show that the agency's
explanation more likely than not is a pretext for reprisal discrimination.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the final
agency decision.
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
__12-11-01________________
Date