01996159
02-08-2002
Barbara A. Palmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Barbara A. Palmer v. United States Postal Services
01996159
2/8/02
.
Barbara A. Palmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01996159
Agency No. 4F-950-1165-96
DECISION
Barbara A. Palmer (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of sex (female), and reprisal (prior EEO
activity) 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
in accordance with 29 C.F.R. �1614.405. For the following reasons,
the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issues on appeal are whether complainant was subjected to
discrimination on the aforementioned bases when:
On March 29, 1996, she was timed by the supervisor checking her Change
of Address (COA) cards;
On April 6, 1996, she was subjected to two covert street surveillances;
On April 9, 1996, and April 25, 1996, her supervisor made unprofessional
comments;
On May 2, 1996, her schedule change was disapproved;
On May 3, 1996, she was issued a notice of suspension;
On May 4, 1996, her postage dues were not approved before street time;<1>
On May 10, 1996, her mail volume was counted twice;
A supervisor approved a 3996 and then wrote down a different approved
time;
A 204-B allowed Carriers to talk about the complainant, participated
in disparaging remarks, showed her 3996 to Carriers, stood and watched
her case and questioned her casing of accountable mail;
On May 22, 1996, complainant was not paid 8 hours for 7:01 Carrier rule;
On May 30, 1996, she was inspected by 204-B;
On June 4, 1996, she was forced to see the Postmaster before going home
sick and;
On June 8, 1996, she was ordered to leave the building and forced to
go into the supervisors' office.
BACKGROUND
The record reveals that at the time complainant filed the instant
complaint, she was employed as a Carrier Technician, PS-06, at the
agency's Aptos Post Office in Aptos, California. With respect to Issue
#1, complainant contends that she was timed checking her COA cards by the
204-B (hereafter Acting Supervisor). Although checking the COA cards is
a required Carrier function, complainant stated that no other Carrier was
similarly timed. Further, complainant stated in reference to Issue #2,
that on April 6, 1996, she was subjected to two covert street operations
by the Acting Supervisor. Addressing Issue #3, complainant stated that on
April 9, 1996, the former Supervisor of Customer Services, (SCS) told her
that �. . . everyone is talking about you. They don't like you, doesn't
that bother you?� Complainant states that this purported statement
by the SCS violated the Postmaster's order prohibiting employees from
making negative statements about other employees on the workroom floor.
Describing Issue #4, complainant stated that her request for a schedule
change was denied while the schedule change for several male Carriers, who
had not participated in EEO activity, was approved. With respect to Issue
#5, complainant stated that on May 3, 1996, she was issued a suspension
for taking the collection keys home and refusing a direct order from the
Acting Supervisor to return them that same day. According to complainant,
it was the past practice at the Aptos Post Office that Carriers who
took the collection keys home, will return them the following day.
With respect to Issue #7, complainant averred that on May 10, 1996,
the Acting Supervisor double counted her mail in the morning.
With respect to Issue #8, complainant averred that on May 11, 1996, her
overtime form was approved for a � of a hour less than she had requested
that morning. Complainant states that she could have been disciplined
if she did not accidentally discover this discrepancy between the amount
of overtime she requested and the amount that was actually approved by
the SCS on her 3996 form. Further, complainant indicated with respect
to Issue #9 that on May 13, 1996, the Acting Supervisor stood outside of
her case all morning watching her. After she completed her 3996 form,
complainant states that the Acting Supervisor took the form and showed
it to several employees. On this date, complainant also states that the
Acting Supervisor told her that it was wrong to case her accountable mail.
Addressing Issue #10, complainant stated that on May 22, 1996, she was not
paid for eight hours under the 7:01 rule.<2> According to complainant,
it was not until some subsequent date that the agency management told
the employees that Carriers working less than 7.01 hours will not be
paid for working eight hours under the rule.
Addressing Issue #11, complainant stated that on May 30, 1996, she
was subject to three street supervisions by agency management, and
was not given any PS form 4584. According to complainant, there was
no justification for this close scrutiny by the Acting Supervisor.
With respect to Issue #12, complainant stated that on the date in
question, she was given a direct order to see the Postmaster before she
could go home sick. On that particular date, complainant stated that she
came in to work only to case her mail because she had food poisoning.
Despite this fact, complainant states that the Acting Supervisor would
not allow her to complete a sick leave form and he insisted that she see
the Postmaster before leaving the job site. With respect to Issue #13,
complainant states that on June 8, 1996, the SCS insisted that she work
off the clock before ordering her to leave the Aptos Post Office.
At the conclusion of the investigation, the agency informed complainant
of her right to request a hearing or a final agency decision. By letter
dated May 10, 1999, complainant requested a FAD without a hearing.
In a FAD dated July 13, 1999, the agency found that complainant was not
subjected to discriminatory or retaliatory treatment. Specifically,
the agency held that complainant failed to establish a prima facie case
of sex and reprisal discrimination because she failed to show that she
was subject to disparate treatment with respect to Issues # 1, #2,
and #7. Moreover, the agency determined that there was no factual
basis to support the allegations of discriminatory treatment raised
by complainant in Issues #3, #8, #9, #11 and #13. Further, the agency
determined with respect to the remaining issues that complainant failed
to show that the reasons it articulated for its challenged actions were
a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant contends that the agency subjected her to disparate treatment
and then it amended its policy to make other employees subject to the
same treatment to which she was subjected. In this regard, complainant
notes that it was only after the agency attempted to suspend her that
it required all employees to return the collection keys to the Aptos
Post Office on the same day that they took them home.<3> Complainant
also notes that prior to engaging in EEO activity, she was paid under the
7:01 rule for merely working seven hours. The remainder of complainant's
appeal is mainly a reiteration of the arguments she made earlier in the
complaint process. Complainant also submitted a number of documents
and statements, in April of 2001, almost two years after she filed her
appeal in this case. Although complainant identifies these documents
as new evidence, they appear to be duplicates or repetition of evidence
previously submitted as part of the record, or they appear to be unrelated
to the issues accepted for investigation in this case.
In response to complainant's appeal statement, the agency indicates that
it stands by its FAD and it requests that the Commission affirm it.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant
to initially establish that there is some substance to his or her
allegation of discrimination. In order to meet this burden, complainant
must establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). This means that complainant must
present a body of evidence such that, if not rebutted, the trier of fact
could conclude that unlawful discrimination did occur.
Complainant may establish a prima facie case of sex discrimination by
showing that: (1) she is a member of a protected class; and (2) she
was accorded treatment different from that given to persons otherwise
similarly situated who are not members of her protected group.
See Potter v. Goodwill Industries of Cleveland, Inc., 518 D.2d 864,
865 (6th Cir. 1975). A complainant may also set forth acts that if
otherwise left unexplained, an inference of discrimination may be drawn.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Moreover, complainant may 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).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, the Commission finds that the agency has
articulated legitimate, nondiscriminatory reasons for its action.
In responding to complainant's allegation of discrimination, the Acting
Supervisor (male and no prior EEO activity) averred with respect to
Issue #1 that the regular Carrier of complainant's swing complained
that complainant was delivering mail to old addresses. In order to
determine whether complainant was spending enough time on her COA cards,
the Acting Supervisor averred that he asked complainant to tell him
when she started and when she finished working on the cards. He denied
standing in front of complainant's case to watch her. He also noted that
while complainant often request one hour overtime to perform this task,
it typically takes other Carriers, 15 to 20 minutes to complete it.
With respect to Issue # 2, the Acting Supervisor averred that he only
did one observation of complainant's driving practice. Moreover,
the Acting Supervisor averred in addressing Issue #7 that he did not
count complainant's mail volume twice on the day in question. Rather,
the Acting Supervisor stated that the SCS counted complainant's mail
volume and approved 1.25 hours of overtime, which according to him, is
standard procedure whenever a Carrier requests auxiliary help or overtime.
Moreover, the Acting Supervisor in responding to Issue #9, denied making
any disparaging remarks about complainant or showing her PS Form 3996 to
other Carriers, except for the Carrier who carries laps for complainant.
Commenting on this issue further, the Acting Supervisor stated that it
is standard procedure for all employees that carry laps or do auxiliary
help to complete Form 3996 to justify the actual time. Additionally,
the Acting Supervisor stated that he told complainant that rather than
casing accountable mail, the proper procedure is to case the PS Form 3849.
With respect to Issues #11, the Acting Supervisor stated that he only
gave complainant one street supervision on May 30, 1996. He concedes
that he saw her a second time that day delivering her route while he was
on his way to see another Carrier. Finally the Acting Supervisor noted
with respect to Issue #12, that he did not force complainant to see the
Postmaster on June 4, 1996. Rather, the Acting Supervisor stated that
after complainant told him that she was going home because she was ill,
he told her to go to the office because the Postmaster wanted to see her.
Moreover, the Acting Supervisor denied preventing complainant from filing
a sick leave form on the day in question.
Also addressing Issue #12, the Postmaster (female, no prior EEO activity)
averred that on June 4, 1996, she told the Acting Supervisor that
she wanted to see complainant in her office. However, after she was
told that complainant was ill, the Postmaster stated that she allowed
complainant to go home without seeing her. With respect to Issue
#13, the Postmaster stated that she concurred in the SCS's action.
According to the Postmaster, complainant was off the clock that day and
the SCS's request for complainant to leave the building did not affect her
employment in any way. The former SCS also gave a statement on behalf of
management.<4> He stated with respect to Issue #10 that complainant was
not paid in accordance with the 7:01 rule because she worked only 7 hours.
Further, the SCS noted with respect to Issue #4 that he denied complainant
a schedule change on the date in question because it was a Saturday,
the office was short handed and auxiliary assistance was not available.
With respect to Issue #5, the SCS stated that the notice of suspension
was issued for just cause. Further, the SCS denied making unprofessional
comments about the complainant or changing the amount of overtime he
verbally approved for complainant on her 3996 form.
Upon reviewing the record as a whole, we find that the agency articulated
legitimate nondiscriminatory reasons for the challenged personnel actions.
Because the agency articulated a legitimate nondiscriminatory reason for
the challenged actions, complainant must demonstrate that these reasons
are pretextual and/or that the agency was motivated by discriminatory
animus. The arguments raised by complainant in her appeal are mainly
a reiteration of arguments she raised earlier in the process or they
are unrelated to the points articulated by the agency for taking the
challenged personnel actions. Consequently, we find that complainant
failed to show by a preponderance of the evidence that the agency engaged
in discriminatory and retaliatory actions.
CONCLUSION
Therefore, the agency's finding of no discrimination with respect to
the challenged actions is AFFIRMED.
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
2/8/02
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 During the investigation, complainant indicated that she will no longer
pursue Issue #6.
2 According to Section 432.53 of the Employee Labor Relations Manual,
the 7:01 rule refers to the crediting of 8 hours of work time to a City
Carrier who actually works more than 7 hours, but less than 8 hours of
a regular schedule day and who is officially excused from the completion
of the 8 hour tour. See Report of Investigation (ROI) Exhibit (Ex). 14c.
3 The record established that complainant grieved her suspension and
it was reduced to a Letter of Warning which was ultimately removed from
her record. See ROI Exs. 9B & 9C.
4 The former SCS stated in his affidavit that he left the agency's
management rank and returned to the Clerk craft in December 1997.