0120062075
06-19-2007
Patrick Noland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Patrick Noland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01200620751
Hearing No. 110-2005-00420X-TGH
Agency No. 4H-300-0016-04
DECISION
On February 10, 2006, complainant filed an appeal from the January 6,
2006, final agency decision (FAD) 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. The appeal is deemed timely and 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 an Electronic Technician at the agency's Marietta DDC facility in
Marietta, Georgia. On March 15, 2005, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity2 (arising under Title VII) when:
1. He was bypassed for overtime after signing the overtime-desired list
in 2004;
2. He was issued a seven-day suspension for failure to follow
instructions; and
3. He was issued a 14-day suspension for failure to discharge duties
conscientiously and effectively and failure to obey a supervisor's
instructions.
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.
As to issue (1), the FAD found the following: complainant met the first
element of a prima facie case in that he engaged in prior protected
activity when he filed an EEO complaint in May 2004. Complainant met
the second element in that his supervisor was aware of that prior EEO
activity. Complainant failed, however, to meet the third element in
that he did not identify any specific available overtime to which he
was not assigned. In addition, the FAD found that complainant failed to
establish the fourth element in that he submitted no evidence suggesting
a causal connection between his overtime assignments and his prior EEO
activity. Complainant had therefore failed to establish a prima facie
case of retaliation with respect to overtime assignments in October 2004.
As to issue (2), the FAD found the following: complainant was alleged
to have failed to follow instructions regarding "sort plans"3 on
October 9-10, 2004. Complainant had previously been disciplined in
2003 and 2004 for various infractions including failure to follow
instructions. Complainant met the first element of a prima facie case
in that he engaged in prior protected activity when he filed an EEO
complaint in May 2004. Complainant met the second element in that his
supervisor was aware of that prior EEO activity. Complainant met the
third element in that he suffered adverse treatment by being issued a
seven-day suspension. According to the agency, complainant failed to show
a causal connection between his prior EEO complaints and his seven-day
suspension. Complainant, therefore, failed to establish a prima facie
case of retaliation with respect to the seven-day suspension.
As to issue (3), the FAD found the following: complainant's supervisor
stated that she gave complainant specific instructions on December 24,
2004 regarding the sort plans. Complainant failed however, to download
sort plans on December 26, 2004. Complainant again met the first three
elements of a prima facie case in that he engaged in prior EEO activity,
his supervisor was aware of that EEO activity, and he suffered adverse
treatment by being issued a 14-day suspension. Complainant again failed
to meet the fourth requirement in that he did not provide any evidence,
other than his bare allegation, to suggest a causal connection between his
prior EEO complaint and the 14-day suspension. Complainant, therefore,
failed to establish a prima facie case of retaliation with respect to
the 14-day suspension.
ANALYSIS AND FINDINGS
Complainant has raised no new arguments on appeal. The agency
requests that we affirm the FAD. 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. Worcestor 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.
As stated above, 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). The nexus may be shown by evidence that the adverse
treatment followed the protected activity within such a period of time
and in such a manner that a reprisal motive is inferred. See Devereux
v. United States Postal Service, EEOC Request No. 05960869 (April 24,
1997).
In the instant case, complainant has established a prima facie case of
reprisal discrimination as to all three of his claims. First, complainant
engaged in prior protected activity when he filed an EEO complaint on
May 10, 2004. Second, the record indicates that the agency officials
were aware of complainant's prior EEO activity. Third, after management
became aware of complainant's protected activity, he was subjected to
adverse treatment by the agency. Fourth, the adverse treatment followed
complainant's prior protected activity within sufficient time to support
a nexus.
Complainant, however, has failed to prove that the agency's articulated
legitimate, nondiscriminatory reasons were pretext for discrimination. As
to (1), the agency has articulated a legitimate, nondiscriminatory reason;
namely, overtime is scheduled as needed and complainant was not denied
overtime. Complainant's supervisor stated that overtime is awarded
by tour and may be requested by an employee but is not guaranteed.4
Complainant has presented no persuasive arguments or evidence proving
that the legitimate reason proffered by the agency was a pretext for
discrimination.
As to (2), the agency has articulated legitimate, nondiscriminatory
reasons; namely, complainant was issued a seven-day suspension because
he was instructed to download the correct sort plans and failed to
follow those instructions on October 9, 2004. The agency stated that
complainant had previously been issued a letter of warning for failure
to report for duty on scheduled overtime, and this was considered when
management issued the discipline. Complainant has presented no persuasive
arguments or evidence proving that the agency's articulated reason was
a pretext for discrimination.
As to (3), the agency has articulated legitimate, nondiscriminatory
reasons; namely, complainant was issued a 14-day suspension because he
again failed to download sort plans on December 26, 2004.5 The agency
stated that the previous suspension and letter of warning were considered
when the punishment was issued. Complainant has presented no persuasive
arguments or evidence proving that the legitimate reason given by the
agency was a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, 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
June 19, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 In his initial EEO Counselor contact, complainant cited sex
(male) and retaliation (prior EEO activity) as the types of
discrimination. Complainant did not claim sex discrimination in his
formal complaint of discrimination, therefore, the Commission will only
address complainant's claim of retaliation.
3 The record does not clearly define "sort plans" however, it appears
that the technician is required to download the sort plans on a daily
basis (except Sundays) in preparation for the next day's work.
4 We note that the record indicates that complainant was in fact awarded
approximately 30 hours of overtime in October 2004 while a co-worker on
the same tour was given approximately 22 hours of overtime during the
same month.
5 Complainant does not dispute that he failed to download the proper
sort plans on either occasion. Instead, he claims that the punishment
issued was in retaliation for his prior EEO activity.
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0120062075
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036