01993639_r
12-09-1999
Megan Owen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Megan Owen, )
Complainant, )
)
v. ) Appeal No. 01993639
William J. Henderson, ) Agency No. 4H-335-0181-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. <1> Complainant claimed that the agency discriminated against
her when her supervisor rode with her during a street observation of
her route, an action that he had not taken with other letter carriers,
and subsequently gave her instructions concerning the street observation.
The appeal is accepted in accordance with EEOC Order No. 960, as amended.
For the following reasons, the agency's decision is AFFIRMED.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently filed a formal complaint on April 24, 1998.
At the conclusion of the investigation, the agency notified complainant of
her right to request an administrative hearing or a final agency decision.
Complainant did not respond to the agency's notice and, in accordance
with EEOC regulation, the agency issued a decision on the merits of
complainant's complaint. See 64 Fed. Reg. 37,644, 37, 657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.110(b)).
The FAD concluded that complainant established a prima facie case of
discrimination when she demonstrated that similarly situated employees,
not in her protected class, were treated differently because her
supervisor did not ride in the same vehicle with them on street
observations.
The FAD further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely that testimony from
complainant's supervisor, William Ramsey, revealed that previous attempts
at correcting complainant's work deficiencies failed. Complainant's
supervisor stated that riding in the same vehicle with complainant was the
only way to ascertain time discrepancies associated with her handling of
boxes and the mail on her route. He further testified that instructions
given to complainant, following his observation of her performance, were
considered standard operating procedure. He also stated that because
street observations on other letter carriers did not reveal any problems,
he did not have to ride with them in their vehicles during their routes.
The FAD concluded that complainant failed to present credible evidence
that the agency's reasons for its actions were a pretext for sex or
reprisal-based discrimination.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases),the Commission agrees with the agency that complainant established
a prima facie case of discrimination because the supervisor did not
perform the street observation on male carriers by riding in the same
vehicle.
Because we find that complainant established a prima facie case, the
agency was tasked with articulating a legitimate, nondiscriminatory reason
for its actions. We find that it did. In reaching this conclusion, we
note that complainant never controverted the agency's articulated reason
for its actions. The Commission finds that complainant thus failed to
present evidence that the agency's explanation for its actions was a
pretext for discrimination.
Therefore, after a careful review of the record and the agency's response
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 9, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.