01A40285_r
02-10-2004
Mia R. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mia R. Mitchell v. United States Postal Service
01A40285
February 10, 2004
.
Mia R. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40285
Agency No. 1J-609-0023-02
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated October 7, 2003, 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 record reveals that during the relevant time, complainant was employed
as a Mail Handler at the agency's Chicago Bulk Mail Center in Forest
Park, Illinois. Complainant sought EEO counseling and subsequently filed
a formal complaint on June 5, 2002, alleging that she was discriminated
against on the bases of race (African-American) and sex (female) when
on February 27, 2002, she was issued a Notice of Removal for failure to
maintain a regular work schedule.<1>
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency found no discrimination. The agency concluded
that complainant failed to establish a prima facie case of race and
sex discrimination. Furthermore, the agency concluded that assuming
arguendo that complainant established a prima face case of race and sex
discrimination, management articulated a legitimate non-discriminatory
reason for its actions. Specifically, the agency presented evidence
supporting a determination that complainant was issued a Notice of Removal
because of long standing attendance problems; and that she showed no
improvement in her attendance deficiencies after being given probation
and union settlements. Moreover, the agency found that complainant
failed to present any evidence which demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
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).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The agency determined that
complainant was issued a Notice of Removal for failure to maintain a
regular work schedule. The agency further determined that complainant
failed to show any improvement in her irregular attendance after
receiving probation and union settlements.
The record in this case contains an affidavit from complainant's
Supervisor. Therein, the Supervisor stated that she issued complainant a
Notice of Removal because of unscheduled absences and past disciplinary
actions. The Supervisor further stated that since complainant was hired
in 1994, she has had an attendance problem and was given probation
and settlements but she continued to have unsatisfactory attendance.
The Supervisor stated that she made every effort to help complainant
to correct her attendance problem and granted her leave when she made
requests in advance.
The record also contains an affidavit from the Manager, Distribution
Operations. Therein, the Manager testified that after reviewing
complainant's past disciplinary record including a Last Chance 30-Day
Suspension dated August 4, 2001, and the current infractions, he agreed
with the Supervisor's decision that the subject Notice of Removal
was the "next progressive action" issued to complainant. The Manager
further testified that complainant had been off duty since March 30,
2000, pending the grievance procedure; and that on November 14, 2002,
the union requested a Pre-Arbitration Settlement. The Manager stated
that he offered the union and complainant "another Last Chance Agreement
whereby within 30 days from that date she would be permitted to return
to duty with certain stipulations." The Manager stated that the union
and complainant accepted his offer; however, complainant resigned in
December 2002.
Complainant has not demonstrated that the agency's articulated reasons
for her Notice of Removal for failure to maintain a regular work schedule
were a pretext for discrimination. Accordingly, the agency's decision
finding 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
February 10, 2004
__________________
Date
1The record reflects that a November 14, 2002 union settlement agreement
identified as a �Last Chance Agreement� provided for reduction of
the Notice of Removal to a Long Term Suspension without back pay.
However, prior to returning to duty in accordance with this agreement,
complainant resigned from agency employment effective December 12,
2002, because her request to be reassigned to Tour 2 was denied.