03a00089
07-25-2000
Ronald L. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald L. Smith v. United States Postal Service
03A00089
July 25, 2000
.
Ronald L. Smith,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A00089
MSPB No. PH-0752-99-0333-I-1
DECISION
INTRODUCTION
On May 1, 2000, Ronald L. Smith (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (EEOC or Commission)
for review of an Order of the Merit Systems Protection Board (MSPB) dated
March 31, 2000, concerning an allegation of discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. The petition is governed by the provisions of
the Civil Service Reform Act of 1978 and EEOC regulations, 29 C.F.R. �
1614.303 et seq. The MSPB found that the United States Postal Service
(agency) did not engage in discrimination as alleged by petitioner.
For the reasons which follow, the Commission CONCURS with the decision
of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on
reprisal when he was removed from employment constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.
BACKGROUND
Petitioner filed an appeal with the MSPB challenging his removal
from employment effective December 14, 1997, on a charge of improper
conduct/unacceptable performance.<1> A hearing was held before an MSPB
administrative judge (AJ) on September 10, 1999. On October 20, 1999,
the MSPB AJ issued an Initial Decision (ID) sustaining the removal
and finding that the agency did not discriminate against petitioner.
Petitioner filed a petition for review by the full Board, which was
denied.
Petitioner was employed by the agency as a Mail Processing Equipment
Mechanic at the agency's Processing and Distribution Center (PDC)
in Lancaster, Pennsylvania. In 1997, a type of equipment called
�carrier cells� and associated parts began disappearing and were in
short supply. As a result of a Postal Inspection Service investigation,
it was determined that petitioner had been dumping this equipment in
the trash compactor. A recommendation that petitioner be removed from
employment followed.
Petitioner argued, in relevant part, that his removal was effected
in retaliation for a 1995 EEO complaint he had filed alleging age
discrimination on the part of the Plant Manager of the PDC. In that
complaint, he alleged that on three dates in October and November 1995,
the following occurred: on one occasion, the Plant Manager screamed at
him, �You are here to repair the machine, do you hear me?�; on another
occasion, the Plant Manager said to him, �You are going to be fired, mark
my words�; and on a third occasion the Plant Manager told him that he
(petitioner) was not on the job for ten minutes. The agency dismissed
the complaint in January 1996 for failure to state a claim.
The MSPB AJ upheld petitioner's removal, finding that there was no
�genuine nexus� between petitioner's 1995 protected activity and his
removal from employment in 1997. This petition followed.
ANALYSIS AND FINDINGS
The Commission must determine whether, with regard to petitioner's
allegation of discrimination, the decision of the MSPB constitutes
a correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
29 C.F.R. �1614.305(c). The Commission finds that the MSPB's decision
is supported by the record and, for the reasons stated below, CONCURS
with its findings.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This
means that the complainant must present a body of evidence such that,
were it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Petitioner engaged in protected activity by filing an EEO complaint
in 1995. It is not clear whether the proposing or deciding officials,
neither of whom was the Plant Manager, had knowledge of his protected
activity. Petitioner was disadvantaged subsequent to his protected
activity when he was removed from employment. There does not appear to be
a fair basis for inferring a causal connection between a complaint filed
against the Plant Manager in 1995 and dismissed shortly thereafter and
petitioner's removal nearly two years later. Accordingly, the Commission
is not persuaded that petitioner has established a prima facie case of
reprisal discrimination.
Assuming for the sake of argument that a prima facie case were
established, the burden would then shift 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. The agency has met that burden
here by explaining that petitioner was discovered to have disposed of
the missing carrier cells and carrier cell parts by placing them in a
trash compactor, in contravention of established agency procedures.
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). Although the burden of production,
in other words, �going forward,� may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256.
Here, petitioner has not shown that agency officials more likely were
motivated by retaliatory animus than by petitioner's actions when they
proposed and eventually imposed his removal. Petitioner alleges that he
was �set up�; however, the record reflects that, pursuant to tips from
other employees received by the Postal Inspection Service, petitioner
was observed improperly disposing of carrier equipment. Further facts
argued by petitioner � that the Plant Manager avoided him after the
1995 EEO complaint had been filed and that eventually his (petitioner's)
shift was changed � also do not support a finding of pretext.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
CONCUR with the final decision of the MSPB finding no discrimination.
The Commission finds that the MSPB's decision constitutes a correct
interpretation of the laws, rules, regulations, and policy directives
governing this matter, and is supported by the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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, Acting Director
Office of Federal Operations
July 25, 2000
________________________
Date
1The record reflects that petitioner first filed an EEO complaint on
this matter, and that the complaint had proceeded to the hearing stage,
but had not yet been heard, when the EEOC administrative judge (AJ) to
whom the case had been assigned recognized that the separation claim
was a �mixed case,� that is, one whose subject matter was appealable
to MSPB, and that the agency had not properly informed petitioner of
his rights. The EEOC AJ remanded the complaint to the agency, and
petitioner thereafter timely filed an appeal with MSPB. It is noted
that contemporaneously with these proceedings, petitioner also pursued
a grievance through arbitration. The MSPB AJ subsequently found that
petitioner was collaterally estopped from re-litigating before him
certain matters which had been decided by the arbitrator. Contrary to
petitioner's argument on appeal, there is no indication that petitioner
was estopped from presenting evidence bearing on his claim of reprisal
discrimination, which was not one of the matters litigated before the
arbitrator, and is the only matter presently before the Commission;
i.e., the Commission's authority to review this case extends only to
the MSPB AJ's finding regarding the claim of reprisal discrimination,
and not to the appropriateness of the penalty or any other matter.