01A41021_r
04-08-2004
Belinda Webb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Belinda Webb v. United States Postal Service
01A41021
April 8, 2004
.
Belinda Webb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41021
Agency No. 4F-907-0108-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's Gardena Post Office in Gardena,
California. Complainant sought EEO counseling and subsequently filed a
formal complaint on June 26, 2001, alleging that she was discriminated
against in reprisal for prior EEO activity when she was continuously
harassed and retaliated against from November 3, 1999 through February
16, 2001, including being charged with Absence Without Leave (AWOL);
7-Day and 14-Day No Time-Off Suspensions; and official discussions.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. The record
reflects that complainant initially requested a hearing, but that the
request was subsequently withdrawn. The agency thereupon issued a FAD
finding no discrimination.
The agency concluded that complainant failed to establish a prima facie
case of reprisal discrimination. Furthermore, the agency concluded
that assuming arguendo that complainant established a prima face
case of reprisal discrimination, management articulated a legitimate
non-discriminatory reason for its actions. Moreover, the agency found
that complainant failed to present any evidence which demonstrated
that management's articulated reasons for its actions were a pretext
for discrimination.
A claim of disparate treatment is examined, under the three-part
analysis originally enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must
first 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. Id. at 802; Furnco Construction Corp
v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant 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 complainant
has established a prima facie case to whether s/he has demonstrated by
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).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions, which we determine
were not persuasively rebutted by complainant. Specifically, the agency
presented evidence supporting a determination that complainant was
charged with AWOL, issued 7-Day and 14-Day No Time-Off Suspensions,
and given official discussions, for insubordination, failure to follow
instructions, failure to report for work as scheduled, leaving work
without authorization, and providing unacceptable medical documentation.
The record in this case contains an affidavit from the Supervisor Customer
Service (SCO). Therein, the SCO stated that he issued complainant a 7-Day
No Time-Off Suspension for unacceptable behavior (failure to follow an
instruction to return to her case, then failing to follow a direct order
to return to her case/insubordination); and for leaving work without
authorization (AWOL). The SCO further stated that he issued complainant
a 14-Day No Time-Off Suspension for failure to complete assigned duties
as required/AWOL; and for failure to report for work as scheduled/AWOL.
Furthermore, the SCO stated that he relied on various sections of
the Employee and Labor Relations Manual in his determination to issue
complainant 7-Day and 14- Day No Time-Off Suspensions. The SCO stated
that he made the AWOL determination because of unacceptable medical
documentation. Specifically, the SCO stated that complainant's medical
documentation did not substantiate all of her absences as required.
Regarding complainant's claim that the SCO denied her right to have
her route inspected upon her request in February 2000, the SCO stated
that complainant "did in fact receive a route inspection but after the
first day, she had a family emergency and could not continue with the
inspection." Furthermore, the SCO stated that complainant was observed
having "some office deficiencies;" and that because complainant's
deficiencies have not been corrected, "a new route inspection cannot
proceed."
Regarding complainant's claim that she was forced to work overtime, the
SCO stated that complainant "may have been forced to work overtime but
that those times were very, very rare and fell within the guidelines of
the contract."
Regarding complainant's harassment claim, the SCO stated that he
watched complainant and other carriers load their vehicles because it's
"called street supervision," and that he is not aware of complainant
being subjected to continuous harassment since her return to agency
employment.<1>
Finally, the record also contains an affidavit from the Officer in
Charge (OIC). Therein, the OIC stated that reprisal was not a factor
when complainant was issued 7-Day and 14-Day No Time-Off Suspensions.
The OIC stated that the reason complainant was issued the suspensions
were for acts of insubordination and AWOL. Furthermore, the OIC stated
that the action taken was progressive and that he was the concurring
official in both disciplines.
Upon review, we find that complainant has not demonstrated that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Accordingly, the agency's finding of no discrimination 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
April 8, 2004
__________________
Date
1The record reveals that complainant was
reinstated to a Letter Carrier position after a termination from agency
employment in September 1995.