Larry G. Vallad v. United States Postal Service
03980127
November 25, 1998


Larry G. Vallad,                       )
  Petitioner,                          )
                                       )
  v.                                   )  Petition No. 03980127
                                       )  MSPB No. AT-0752-96-0055-I-2
William J. Henderson,                  )
Postmaster General,                    )
United States Postal Service,          )
  Agency.                              )
_______________________________________)


DECISION

INTRODUCTION

On August 11, 1998, Larry G. Vallad (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) received
July 14, 1998 concerning an allegation of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e
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 (prior EEO activity) 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

On October 13, 1995, petitioner filed an appeal with the MSPB challenging
his removal from his position as a Custodian, PS-4.  A hearing was held
September 30, 1997.  On that date, the MSPB administrative judge (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 on July 10, 1998.

The agency removed petitioner from employment effective October 7, 1995,
on a charge of unacceptable conduct, in that petitioner had tape recorded
conversations with agency officials without their knowledge in violation
of the agency's Employee and Labor Relations Manual (ELM).  The MSPB AJ
sustained the charge based on the agency's evidence, which consisted of
"summaries" of conversations submitted by petitioner in connection with
other proceedings, which summaries appeared to be verbatim transcripts of
conversations between petitioner and various agency officials.  The MSPB
AJ rejected petitioner's claim of reprisal discrimination on the ground
that the deciding official had no knowledge of petitioner's prior EEO
activity, and in fact was not employed at the facility where petitioner
worked, but had been detailed as a deciding official.

In his petition for consideration, petitioner argues that his case is
based on sexual harassment, religious discrimination, and whistle blowing.
Petitioner argues that the MSPB erred by refusing to consider evidence
submitted after the record closed, where the evidence had not previously
been available.  The evidence consists of transcripts from an EEO hearing
where evidence which was rejected by the MSPB AJ was admitted by the
EEOC AJ.  Petitioner did not explain why the evidence was previously
unavailable.  The agency did not reply to the petition for consideration.

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.<1>  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.  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).  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, the record reflects that petitioner engaged in protected activity by
contesting, inter alia, sexually tinged conduct by his supervisor which he
(petitioner) found offensive.  Petitioner subsequently was disadvantaged
by being removed from service.  Petitioner's protected activity and his
removal occurred within a temporal proximity that causal connection fairly
might be inferred.  Nonetheless, the Commission finds that petitioner has
not established a prima facie case of reprisal discrimination because the
deciding official who determined that petitioner should be removed had no
knowledge of petitioner's EEO activity.  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).

Assuming, for the sake of argument, that a prima facie case were
established, the agency articulated a legitimate, non-discriminatory
explanation for petitioner's removal.  The agency explained that
petitioner was removed on account of having violated a provision of the
ELM which prohibits employees from tape recording conversations with
agency officials without their knowledge.  Petitioner has not submitted
persuasive evidence that the agency more likely than not was motivated
by retaliatory animus when it removed him.

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

RIGHT TO FILE A CIVIL ACTION (W1092)

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 (Z1092)

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:


Nov. 25, 1998
    DATE                  Ronnie Blumenthal, Director
                          Office of Federal Operations


1Although petitioner argues in his petition that his complaint alleges
sex and religious discrimination, his MSPB appeal plainly indicates
that petitioner was contesting his removal as having been effected in
retaliation for contesting conduct he perceived as sexual harassment,
which in turn was motivated by his religious beliefs.