Nancy Whitmire, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2006
01a63337 (E.E.O.C. Sep. 28, 2006)

01a63337

09-28-2006

Nancy Whitmire, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Nancy Whitmire,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A63337

Agency No. 1H372001105

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 13, 2006 final decision in the

above-entitled matter. Complainant alleged that the agency discriminated

against her on the basis of reprisal for prior protected EEO activity

under Title VII of the Civil Rights Act of 1964 when, on June 21,

2005, she was not permitted to attend on-the-job instructor (OJI)

training.1

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

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

_9-28-06_________________

Date

1 In order to establish a prima facie case of discrimination on the

basis of reprisal, a complainant must show that: (1) she engaged in a

protected activity; (2) the agency was aware of her protected activity;

(3) subsequently, she was subjected to adverse treatment by the

agency; and (4) a nexus exists between the protected activity and the

adverse action. See Whitmire v. Department of the Air Force, Appeal

No. 01A00340 (September 25, 2000). While the agency asserts in its

final decision that nexus cannot be inferred where there is the passage

of three months between the EEO activity and the adverse treatment, we

note that no such bright line rule exists. See generally Clark County

School Dist. v. Breeden, 532 U.S. 268 (2001). In the present case,

complainant failed to establish a prima facie case of reprisal with

respect to one responsible management official (RMO-1) because RMO-1

was unaware of complainant's prior EEO activity. However, she did

establish a prima facie case of reprisal with respect to the second

responsible management official (RMO-2) because RMO-2 testified that

she was aware of complainant's prior activity, and the record reflects

that only three months passed between the date that complainant filed

her initial complaint and the date the training was offered.

Since complainant established a prima facie case of reprisal with respect

to RMO-2, the burden then shifts to the agency to articulate a legitimate

nondiscriminatory reason for its action. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Here, affidavit testimony

from RMO-2 reveals that she selected 3 Full Time Regular employees from

the Automation section and 3 Part Time Flexible (PTF) employees for

the OJI training. With respect to the Full Time Regular employees,

she asserted that she evaluated said employees and selected the best

qualified employees pursuant to her authority as a supervisor under

agency regulations. She noted that complainant did not allege that

the selection of the 3 Full Time Regular employees for the training

was discrimination. She further explained that the PTF employees were

selected for the OJI training because they have flexible hours and days

off, and are normally scheduled to work 6 days a week and all holidays,

factors that provide management with more flexibility.

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.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here, complainant

provides no evidence to rebut the agency's asserted reason. Accordingly,

the final decision must be affirmed.

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01A63337

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036