01991556
10-12-2001
Elizabeth Tillman-Cammon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Allegheny Area Office), Agency.
Elizabeth Tillman-Cammon v. United States Postal Service
01991556
October 12, 2001
.
Elizabeth Tillman-Cammon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Allegheny Area Office),
Agency.
Appeal No. 01991556
Agency No. 4-C-442-0059-98
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD), dated November 9, 1998, 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. Complainant alleged
that she was discriminated against on the bases of race (Black), sex
(female) and reprisal (prior EEO activity) when on September 13, 1997,
she received a September 12, 1997 dated letter from the Acting Manager
of Finance (KM)(Caucasian, male) which informed her that there was no
basis for an investigation regarding an alleged threat that complainant
had reported and, therefore, no action was required by management.
Background
In Tillman-Cammon v. United States Post Office, EEOC Appeal No. 01982341
(February 11, 1999), the Commission dismissed a companion complaint on the
grounds that it stated the same claim which is reviewed in this decision.
The companion complaint concerned the complainant's prior presentation
of the threat to the EEO office. This appeal concerns the complainant's
subsequent presentation of the issue to the Acting Manager of Finance.
The complainant contended that KM and other management officials did
not follow established postal procedures in the processing of her
alleged EEO claim; that she was not afforded equitable treatment; and
that she was denied due process. The complainant alleged the agency
failed to respond to a threat of work place violence directed at her.
The alleged threat, which occurred on August 9, 1996, occurred when CW
(Caucasian, male) punched a stuffed animal and reportedly said, �this
is Liz.� The complainant was not present at the time, but heard about
the alleged threat. In Appeal No. 01982341, complainant alleged that
the EEO office, after her December 16, 1996 visit, failed to act upon
her allegation of the alleged threat and that she became aware of the EEO
office's inaction when she received the letter from KM. The letter stated
that complainant visited the EEO office regarding the alleged threat but
that she did not want to file a Form 2564-A [EEO Request for Counseling].
In June 1997, the complainant had been writing the District Manager (DM)
concerning the threat and other issues. The DM asked KM to address the
issues raised by the complainant. The letter documented the actions
taken by KM in investigating the alleged threat. KM obtained copies of
all documents relating to the alleged threat and spoke to witnesses.
In addition, he obtained a written evaluation from Dr. K, an Employee
and Workplace Intervention Analyst, who indicated that the actions of
CW were inappropriate, an act of frustration, but not a clear threat
of violence. KM received from the EEO Specialist (JP) a letter stating
that the complainant at her December 16, 1996 meeting was not seeking
to file a complaint, was not concerned about possible untimeliness of
the issue, and wanted to file the papers for informational purposes only.
Complainant was employed as a Senior Budget and Financial Analyst Sr. in
the agency's finance department, Akron, Ohio. Afer receipt of the
letter, believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on December
24, 1997. 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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to meet her
burden of establishing a prima facie case of sex and race discrimination
based on disparate treatment. The FAD also stated that the complainant
failed to meet her burden of establishing a prima facie case of
retaliation. The FAD stated that the agency had articulated a legitimate,
nondiscriminatory reason for its action. The FAD found no discrimination.
Analysis and Findings
Race and Sex Discrimination
The complaint alleged a claim of disparate treatment on the bases of
race and sex. A claim of disparate treatment is examined under the
three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For the complainant to prevail, she
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. McDonnell Douglas, 411 U.S. 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
actions. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez
v. Department of Transportation, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Assuming, arguendo, that the complainant established a prima facie
case of discrimination based on her race and sex, the Commission
finds that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. The September 12, 1997 dated letter states that
complainant visited the EEO Office regarding circumstances concerning the
alleged threat and that complainant did not want to file a Form 2564-A
[Information for Precomplaint Counseling]. Written on the complaint are
the words �Formal Notice of Work Place Violence Threat.� A memorandum,
dated December 16, 1996, prepared by the EEO investigator (JMcC) to the
EEO Specialist (JP) stated that the complainant informed JMcC that she
was not interested in filing a complaint and only wanted to document
the incident for informational purposes. The memo further stated that
complainant did not want counseling and only wanted to establish a
paper trail. JP's memorandum, dated December 16, 1997, informed JMcC
to make a note of the meeting and further stated that the complainant
would inform them if she wanted any further action.
The burden returns to the complainant to establish that the agency's
reasoning was pretext for discrimination. The complainant argues that
the incidents occurred. However, the complainant failed to show that the
agency's actions were motivated by a discriminatory animus toward her
race and/or sex. The Commission finds that the complainant has failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
Retaliation
Regarding the complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. United States Postal Serv.,
EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual,
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id.
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. 802). 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) she engaged in a protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, 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 agency may rebut complainant's prima facie case by articulating
legitimate, nondiscriminatory reasons for its action, and if the agency
does so, complainant must show, by a preponderance of the evidence, that
the agency's reasons are a pretext for discrimination. The Commission
notes that the McDonnell Douglas analysis need not be adhered to in all
cases. In appropriate circumstances, when the agency has established
legitimate, nondiscriminatory reasons for its employment decision, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, that is, whether the complainant
has proven by preponderant evidence that the agency's explanations were
a pretext for actions motivated by prohibited discriminatory animus.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983).
The agency articulated a legitimate, nondiscriminatory reason for the
action at issue, specifically that the complainant indicated in December
1996, that she did not want to file an EEO complaint. On April 7, 1997,
the complainant had told the Manager Finance that her complaint was being
investigated outside of the department. The complainant told KM on May
19, 1997, that he should �stay out of it.� Further, KM stated that he
was not aware of complainant's prior EEO activity.
At all times, complainant retains the burden of persuasion and it is her
obligation to show by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. at 715-716. The complainant failed to
prove that more likely than not, the agency's articulated reasons for its
actions were a pretext for retaliation for the complainant's prior EEO
activity. Accordingly, the Commission finds that the evidence supports
the finding that the agency did not engage in reprisal discrimination.
Conclusion
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, 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
_October 12, 2001
Date