01981700
11-25-1998
Louise Weaver, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region),) Agency.
Louise Weaver v. United States Postal Service
01981700
November 25, 1998
Louise Weaver, )
Appellant, )
)
v. ) Appeal No. 01981700
) Agency No. 4-I-630-1188-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid-West Region),)
Agency. )
______________________________)
DECISION
On December 23, 1997, Louise Weaver (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated December 5,
1997, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., and the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq. Appellant had alleged she had been
discriminated against on the bases of her race (black), color (brown),
sex (female), age (49), and/or retaliation for prior EEO activity,
when, on June 25, 1996, she was issued a notice of removal for failure
to follow instructions. This appeal is accepted in accordance with the
provisions of EEOC Order No. 960.001.
At the time the events at issue occurred, appellant was employed as
an Occupational Health Nurse at the St. Louis, Missouri, Processing
and Distribution Center. On May 22, 1996, appellant was instructed
in a certified letter to report for a fitness-for-duty examination on
June 10, 1996. Appellant refused to comply with this instruction and,
as a consequence, was issued the June 25, 1996 notice of removal.
Appellant's supervisor, the Occupational Health Nurse Administrator
(black female, age 51), stated that she scheduled appellant for the
medical and psychiatric fitness-for-duty examination because she
had engaged in repeated disruptive behavior and failure to follow
instructions. The record indicates that between February and May 1996,
appellant had received a letter of warning, a seven-day suspension and
two fourteen-day suspensions for failure to follow instructions and/or
conduct unbecoming a postal employee. The same supervisor had also
issued disciplinary action to other employees (of diverse races and
ages, and both genders), as well as referred two others (white male,
age 40; black female, age 45) for a psychiatric fitness-for-duty exam.
Both of these employees attended the exams as instructed. The supervisor
denied discriminating against appellant and stated she had no knowledge
of appellant's prior EEO activity at the time she issued the notice of
removal.
The record further reveals that appellant challenged her removal through
the agency's negotiated grievance process. An arbitrator's decision,
dated September 12, 1997, reinstated appellant, without back pay, provided
she immediately undergo and pass a fitness-for-duty examination, including
a psychiatric exam.
On November 5, 1996, appellant filed a formal EEO complaint, alleging
that the agency had discriminated against her as referenced above.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant waived her right
to a hearing and requested for a final decision based on the evidence
of record. On December 5, 1997, the agency issued its final decision
finding no discrimination or retaliation had occurred in this matter.
It is from this decision that appellant now appeals.
Appellant's allegation of discrimination constitutes a claim of disparate
treatment which is properly analyzed under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also, Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867 (1984); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981).
Applying this legal standard, the Commission finds that appellant failed
to establish a prima facie case of discrimination or retaliation because
race and/or sex discrimination because there was insufficient evidence
that other employees were treated more favorably or that the supervisor
was aware of appellant's prior EEO activity at the time of the events
at issue. Moreover, even if appellant had established an initial
inference of discrimination, it was successfully rebutted by the agency
with its articulation of legitimate, nondiscriminatory reasons for the
actions taken. After a careful review of the record, the Commission
discerns no basis upon which to conclude that appellant established, by
a preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter were unbelievable or that its actions
were more likely motivated by discrimination and/or retaliation.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which concluded no discrimination
and/or retaliation occurred in this matter.
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. 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 25, 1998
_________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations