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