01970720
11-20-1998
Barbara E. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Barbara E. Williams v. United States Postal Service
01970720
November 20, 1998
Barbara E. Williams, )
Appellant, )
)
v. ) Appeal No. #01970720
) Agency No. #1D-281-1033-96
William J. Henderson, ) Hearing No. #140-96-8065X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On October 31, 1996, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with EEOC Order No. 960.001.
ISSUE
The issue on appeal is whether appellant has established by a
preponderance of the evidence that the agency discriminated against her on
the basis of reprisal (prior EEO activity) when, on Saturday, January 14,
1995, the agency forced her to work her Holiday, the Martin Luther King
Jr. Holiday (Holiday), and two junior clerks were not forced to work
"their" Holiday<1>.
CONTENTIONS ON APPEAL
On appeal, appellant has essentially reiterated the contentions she
raised below during the investigation of this complaint. The agency
has raised no new arguments on appeal.
BACKGROUND
The record reveals that appellant filed a formal EEO complaint with the
agency on June 6, 1995, alleging that the agency discriminated against her
as referenced above. The agency accepted appellant's complaint, conducted
an investigation, provided appellant with a copy of the investigative
report, and advised appellant of her right to request either a hearing
before an EEOC administrative judge (AJ) or a final agency decision
(FAD). Appellant requested a hearing. On September 17, 1996, the AJ
issued a "Notice of Intent To Issue Findings and Conclusions Without A
Hearing" to appellant and the agency<2>. See 29 C.F.R. �1614.109(e)(3).
Although both parties were provided the requisite fifteen (15) days, and
therefore the opportunity to respond, neither appellant, nor the agency
submitted any additional arguments, evidence or relevant information with
respect to the instant complaint that either party might have wished
the AJ to consider in her findings and conclusions. In a recommended
decision (RD) dated September 17, 1996, the AJ determined that the agency
did not discriminate against appellant on the basis of reprisal (prior
EEO activity). The agency subsequently adopted the AJ's recommended
decision in a final agency decision dated October 8, 1996. It is from
this decision that appellant now appeals.
Appellant began her employment with the agency on November 10, 1973.
At the time this complaint arose, appellant was employed by the
agency in the position of Flat Sorter Machine (FSM) Operator, PS-5,
at the Processing and Distribution Center, Charlotte, North Carolina.
Appellant alleged that the agency discriminated against her by forcing
her to work "her" Holiday, which was Saturday January 14, 1995. However,
two clerks, junior in seniority to appellant were not forced by the agency
to work their Holiday<3>. Appellant asserts that these two junior clerks
(hereinafter referred to as JC1 and JC2, received annual leave under "pay
location 240", and received their Holiday off under the pay location 240
"holiday list". Appellant alleged that the agency forced her to work
"her Holiday" based on retaliation (prior EEO activity), by permitting
the two junior clerks to be off on the Holiday, and forcing the senior
clerks to work the holiday.
In her recommended decision, the AJ concluded that appellant established
a prima facie case based on reprisal (prior EEO activity) because
appellant asserted, and the agency agreed, that she participated in
previous EEO activity. Appellant had filed prior EEO complaints
against her supervisor, Responsible Official (RO1) on August 18,
1994, and October 4 and 12, 1994. Moreover, appellant's supervisor
RO1, and RO2 admitted knowledge of appellant's previous EEO activity.
RO1 testified that appellant had filed EEO complaints against him for two
and one-half years since he had been appellant's supervisor at the FSM.
Appellant alleged that the agency subjected her to adverse treatment in
that her supervisor required her to work her Holiday, January 14, 1995.
Finally, the agency's act of forcing appellant to work her Holiday
occurred within such a period of time, approximately three months since
appellant had filed her most recent EEO complaint, that motivation for
reprisal could be inferred.
However, the AJ determined that appellant failed to establish by a
preponderance of the evidence, that the agency's articulated reason
for requiring appellant to work the Holiday was pretext designed to mask
discrimination based on reprisal (prior EEO activity). Although appellant
was the senior employee in comparison with JC1 and JC2, with respect
to employee starting date at the agency, the agency did not consider
appellant as a senior employee when considering which employee's would
be off for the Holiday. Appellant failed to refute that JC1 and JC2 were
detailed to other assignments, and she knew that these two junior clerks
were detailed. Furthermore, appellant failed to refute the agency's
assertion that JC1 and JC2 had revised schedules; therefore, different
scheduled days off as a result of their respective details, and that
their days off did not have an affect on FSM operations and operators.
JC1 had been detailed to the VMF (Vehicle Motor Facility), and her weekly
scheduled days off (SDO's) were Saturday and Sunday. RO2 testified that
although he had scheduled JC1 to work on Monday, January 16, 1995, if
the VMF had given her that day off for her Holiday, that decision was
within the VMF jurisdiction, not within FSM jurisdiction. However,
JC1 did work on January 16, 1995. Nevertheless, since appellant's
Holiday was January 14, 1995, her Holiday was on a different day than
JC1's Holiday. Therefore, JC1's Holiday had no bearing on appellant's
Holiday. The record does not reveal how long JC1 had been detailed;
however, the agency testified that during the Holiday period, she was
not assigned to the FSM. JC2 was detailed to the North Park Annex
(Annex) and her weekly scheduled days off were Monday and Tuesday.
She has been detailed to various locations since approximately November
26, 1994. The agency did not schedule her to work her Holiday, which
was Sunday, January 15, 1995, and the record reveals that she did not
work her Holiday. Nevertheless, since her Holiday was on a Sunday, and
appellant's was on a Saturday; hence, not the same day, JC2's Holiday
had no bearing on appellant's Holiday.
The agency testified that retaliation was not a factor in its actions of
requesting appellant to work on her holiday. His reason for requesting
that she work was to run the FSM machinery. Specifically, employees
were required to work the holiday period because personnel was needed
to operate FSM machinery. Appellant was required to work her Holiday
because she was not one of the top three (3) senior employees that
the agency let off each day for the Holiday, during the three (3) day
holiday period. Five FSM employees with more seniority than appellant
were scheduled to work their Holiday on Saturday, January 14, 1995,
in order to run the FSM machinery. Furthermore, four (4) other senior
employees, other than appellant, were scheduled to work "their" Holiday.
There is no evidence of record to show that any individual with seniority
lower than appellant's received the Holiday off on January 14, 1995.
On Monday, January 16, 1995, all employees who were off, were senior to
appellant.
For the foregoing reasons, the AJ concluded that appellant failed to
prove discrimination, and recommended a finding of no discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzed appellant's complaint as a part of a disparate
treatment claim. See McDonnell Douglas Corp. v Green, 411 U.S. 792
(1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981); Furnco Construction Company v. Waters, 438 U.S. 567 (1978).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and
U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715-716
(1983); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976).
CONCLUSION
The Commission discerns no basis to disturb the AJ's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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 20, 1998
_______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The record established that the Martin Luther King, Jr. Holiday,
the "Holiday period" for the agency was Saturday, January 14, through
Monday, January 16, 1995. The employees, based on seniority, were
allowed to have "their" Holiday off. The record reveals that "[w]hen
an employee's scheduled non-work day falls on a day observed as a
holiday, the employee's scheduled work-day preceding the holiday shall
be designated as that employee's holiday."
2 EEOC Regulation 29 C.F.R. �1614,109(e)(3) provides that, if the AJ
determines upon his or her own initiative that some or all facts are not
in genuine dispute, he or she may, after giving notice to the parties and
providing them an opportunity to respond in writing within 15 calendar
days, issue an order limiting the scope of the hearing or issue findings
and conclusions without holding a hearing.
3 The two junior clerk's seniority dates, respectively, were 12/24/81,
and 4/28/84.