Jovaunda L. Brown, Appellant,v.William J. Henderson, Postmaster, United States Postal Service, (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionMar 17, 1999
01972756 (E.E.O.C. Mar. 17, 1999)

01972756

03-17-1999

Jovaunda L. Brown, Appellant, v. William J. Henderson, Postmaster, United States Postal Service, (S.E./S.W. Areas) Agency.


Jovaunda L. Brown v. United States Postal Service

01972756

March 17, 1999

Jovaunda L. Brown, )

Appellant, )

)

v. ) Appeal No. 01972756

) Agency No. 1G-754-1095-95

William J. Henderson, ) EEOC No. 310-96-5417X

Postmaster, )

United States Postal Service, )

(S.E./S.W. Areas) )

Agency. )

______________________________)

DECISION

Appellant timely appealed the agency's final decision that it had not

discriminated against her in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq., and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �2000e et seq. The Commission accepts

the appeal in accordance with EEOC Order No. 960.001.

Appellant filed a formal EEO complaint alleging discrimination based

on race (Black), sex (female), national origin (African American) and

physical disability (injured knees) when, on May 18, 1995, she learned

another employee was allowed to continue a 204B assignment after an

accident, while she was not. Following the agency's investigation,

appellant requested a hearing before an EEOC administrative judge.

Finding that there were no material facts in dispute, on November

21, 1996, the AJ issued a Recommended Decision pursuant to 29

C.F.R. �1614.109(e)(3), finding no discrimination.

Specifically, the AJ found that appellant had failed to establish a

prima facie case of discrimination on any bases in that she failed

to show that similarly situated individuals outside of her protected

class were treated better than she was. Appellant alleged that she

was removed from her 204B assignment after she incurred a second on

the job injury, despite her contention that other employees outside

of her protected classes were not removed after their second injury.

Additionally, the AJ found that the agency had articulated a legitimate,

nondiscriminatory reason for its actions. Specifically, the Manager of

Distribution Operations (MDO)(African American, disability) asserted that

if an individual incurs two injuries while in the 204B program, they are

removed from the program. The MDO asserted that Comparison 1 (Caucasian

male, injured right shoulder) was not removed because he incurred only one

injury while a 204B. The record reveals that Comparison 2 (Caucasian,

female, injured right elbow and knee) was injured on December 14, 1992,

and on April 17, 1995. She was removed from the program subsequent to her

second injury. The AJ found that appellant failed to present sufficient

evidence that rebutted the agency's assertions. Although appellant

argued that two other individuals were not removed from the 204B program

for violating agency procedures, the AJ found that the conduct engaged

in was not similar to that of appellant. For that reason, the AJ

found that appellant had failed to prove that the agency's legitimate,

nondiscriminatory reasons for its action were pretext for discrimination.

On February 3, 1997, the agency issued its final decision, adopting

the AJ's finding of no discrimination. It is from this decision that

appellant now appeals.

As appellant's complaint constitutes a claim of disparate treatment, the

agency properly analyzed it under the three-tiered analytical framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Prewitt

v. United States Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981).

Applying this legal standard to appellant's complaint, the Commission

finds that the agency successfully rebutted any initial inference

of discrimination raised by appellant by articulating legitimate,

nondiscriminatory reasons for the actions at issue.

After a careful review of the record, the Commission finds that appellant

failed to establish that the agency's reasons for its actions were pretext

for discrimination. We find that appellant's contentions on appeal

are without merit. Although appellant argued that the agency conducted

an inadequate investigation, we find she failed to provide sufficient

evidence which raised an inference of discrimination. We also find that

appellant failed to introduce evidence proving that the agency's reasons

for its actions were pretext for prohibited discrimination. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's final decision that it did not discriminate against

appellant.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if 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. �1614.604(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:

March 17, 1999

___________________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations