01a54371
10-21-2005
Julia K. McGillvary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Julia K. McGillvary v. United States Postal Service
01A54371
October 21, 2005
.
Julia K. McGillvary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54371
Agency No. 4C-450-0012-04
Hearing No. 220-2005-00041X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) 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, a Full-Time City Carrier at the agency's Troy Post Office in
Troy, Ohio, filed a formal EEO complaint on February 2, 2004, alleging
that the agency discriminated against her on the basis of sex (female)
when:
on October 31, 2003, she was issued a letter of warning.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, an Agency's Motion for a Decision Without a Hearing.
In its motion, the agency requested the AJ to issue a decision without
a hearing, in favor of the agency. The agency argued that complainant
failed to establish a prima facie case of sex discrimination because she
failed to identify a similarly-situated individual outside her protected
class who was treated differently under similar circumstances. The agency
found, however, that assuming complainant established a prima facie case
of sex discrimination, complainant failed to show that the agency's
articulated reasons for its actions were a pretext for discrimination.
The record reflects that complainant's former Supervisor stated that on
October 31, 2003, he issued complainant a Letter of Warning (LOW) for
failure to follow instructions.<1> Specifically, the former Supervisor
stated that on one occasion, the Postmaster observed complainant
delivering mail in a residential area without a mailbag or push cart.
The former Supervisor stated that the Postmaster expressed his concerns
over complainant "not having a means to defend self against dog attack."
The former Supervisor stated that the Postmaster informed him that due
to her physical limitations, complainant was unable to regularly carry
a mailbag. The former Supervisor stated that management then made a
determination to purchase complainant "a mail satchel that would attach
around waist." The former Supervisor stated that after complainant
received the new mail satchel, she was instructed "for a second time
to carry satchel at all times." The former Supervisor stated that on
October 7, 2003, another Supervisor (S1) observed complainant carrying
mail without her satchel. The former Supervisor stated that prior to
the October 7, 2003 incident, he gave service talks instructing letter
carriers, including complainant, to use mailbag or push cart in the
course of their duties. Furthermore, the former Supervisor stated that
complainant's sex was not a factor in his determination to issue her
a LOW.
With respect to complainant's claim that a male letter carrier was treated
differently under similar circumstances, the former Supervisor stated
that after the male letter carrier was observed not using his satchel,
he was instructed to use his satchel at all times. The former Supervisor
further stated that "a followup observation was done after instruction
was given to [Letter Carrier] and employee was in compliance."
The record further reflects that the Postmaster stated that he was the
reviewing and concurring official. The Postmaster further stated that
he observed complainant delivering mail without a satchel or push cart.
The Postmaster stated that he instructed complainant "not to deliver
mail without the use of a satchel or push cart for safety reasons and
regulations." The Postmaster stated that after complainant indicated that
the satchel with shoulder straps was causing her pain in her shoulder,
complainant was provided a special satchel that could be worn around the
waist. The Postmaster stated that although complainant was instructed on
several occasions to use a satchel or push cart, S2 observed complainant
not using a satchel on October 7, 2003. The Postmaster stated that he
also observed two male letter carriers delivering mail without the use
of a satchel or push cart. The Postmaster stated that he instructed
them to use their satchels at all times. The Postmaster stated that he
conducted a follow-up observation, and found the two letter carriers
"were in compliance with my instructions and using their satchels
as instructed." Furthermore, the Postmaster stated that the former
Supervisor's determination to issue complainant a LOW had no bearing on
her sex.
On April 20, 2005, the AJ granted the agency's motion for a decision
without a hearing, finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of sex discrimination.
The AJ further concluded that the agency articulated legitimate,
non-discriminatory reasons for its actions. The AJ found that complainant
failed to show that the agency's articulated reasons were a pretext to
mask unlawful discrimination.
On April 26, 2005, the agency issued a final action wherein it implemented
the AJ's decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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 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. See 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. See 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. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Complainant has not shown that
the agency's articulated reasons were a pretext for discrimination.
The agency's final action implementing the AJ'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
October 21, 2005
__________________
Date
1The record reveals that complainant filed
a grievance concerning the October 31, 2003 LOW. The grievance was
resolved by providing that the LOW would remain in complainant's file
until April 30, 2004.