01997048
09-27-2001
Mark F. Elmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mark F. Elmore v. United States Postal Service
01997048
September 27, 2001
.
Mark F. Elmore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01997048
Agency No. 4J-460-0204-97
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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that he was discriminated against
on the basis of reprisal when he was issued a seven-day suspension.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a City Carrier at the agency's Indianapolis, Indiana Post
Office. Complainant was issued a seven-day suspension for Failure to
Follow Instructions, Delay of Mail, and Unauthorized Overtime. Believing
he was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on August 27, 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. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that complainant did not establish a
prima facie case of discrimination, finding that the record was devoid
of any evidence proving complainant was treated differently than other
employees, not of his protected group. The agency additionally concluded
that complainant presented no evidence that would establish a causal
connection between his prior EEO activity and the seven-day suspension.
The agency nevertheless articulated legitimate business reasons for its
actions, i.e., his supervisor indicated that the suspension was based on
a documented and demonstrated failure to follow instructions. Finally,
the agency found that complainant had not shown that the agency's reasons
were pretext.
Complainant filed an appeal, but did not submit a supporting brief.
ANALYSIS AND FINDINGS
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See 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 retaliation
cases). A complainant must first 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 reason
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
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 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, 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 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. The causal connection may be
shown by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted).
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its action. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant's
supervisor stated that she issued the complainant the seven-day suspension
based on the documented and demonstrated failure of complainant to follow
instructions. The evidence in the record revealed that on August 4, 1997,
complainant's supervisor suspended complainant for the following reasons:
(1) on August 2, 1997, complainant willfully delayed 51 pieces of mail for
Route 31, and he used unauthorized overtime; (2) on August 4, 1996, the
complainant again used unauthorized overtime. Complainant's supervisor
also cited past incidents, where the complainant used unwarranted
and unauthorized overtime on his route ten times since July 5, 1997.
Complainant's supervisor further indicated that the complainant was
given official discussions on August 20, 1997, May 6, 1997, and June 3,
1997, for failure to follow instructions. On appeal, complainant does
not dispute the agency's articulated legitimate reasons given for the
suspension. Accordingly, the Commission finds that complainant failed to
present evidence sufficient to support the conclusion that the agency's
articulated reasons for its actions were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the FAD.
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
September 27, 2001
Date