Marion G. Ferguson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 11, 2001
01993909 (E.E.O.C. Dec. 11, 2001)

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