01a41675
05-10-2005
Patricia A. Reynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. Reynolds v. United States Postal Service
01A41675
May 10, 2005
.
Patricia A. Reynolds,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41675
Agency No. 4H-350-0019-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Carrier
Technician, PS-07, at the agency's Mobile Post Office in Mobile, Alabama.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 4, 2002, alleging that she was discriminated
against on the bases of race (African-American), age (D.O.B. 3/20/50),
and in reprisal for prior EEO activity when:
(1) on September 11, 2002, she was issued a Letter of Warning;
(2) on September 18, 2002, she was issued a Seven-day (no time off)
Suspension; and
(3) on October 9, 2002, she was told not to wear her shop steward badge.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found no discrimination. Specifically, the agency
found that complainant failed to establish, by a preponderance of the
evidence, that she was subjected to discrimination on the bases of race,
age or prior protected activity.
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, she 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).
The agency articulated a legitimate, non-discriminatory reasons for its
employment actions, which were not persuasively rebutted by complainant.
The record reflects that complainant's supervisor stated that she issued
complainant a LOW for unsatisfactory work performance when on August 19,
2002, complainant, while in the performance of her duties, signed for a
spare arrow key; and that complainant failed to turn in the arrow key,
which was not accounted for until August 21, 2002.<1>
Regarding claim (2), the record reflects that complainant's former
supervisor stated that she issued complainant a Seven-day (no time
off) Suspension on September 18, 2002, for improper conduct.<2>
Specifically, the former supervisor stated that on August 20, 2002,
complainant cancelled her own mail, while at work but not on the clock,
and entered non-mailable mail matter in the mail stream in an attempt
to obtain preferential handling. The former supervisor stated that as
a result, other carriers were required to retrieve these mail pieces
and return them, which incurred unnecessary time and cost.
Regarding claim (3), the record reflects that the Officer-in-Charge (OIC)
directed complainant's former supervisor to have complainant remove her
shop steward badge because �she was at a local store impersonating herself
as a supervisor investigating an incident involving another employee.�<3>
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
On appeal, complainant raises new claims of reprisal following the filing
of her complaint (non-selections; denied training opportunities; and
paid for three Associate Supervisory program courses out of her pocket).
These claims were not previously raised and it is therefore inappropriate
for complainant to raise these new claims for the first time as part of
the instant appeal.
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
May 10, 2005
__________________
Date
1The record reveals that complainant filed
a grievance concerning the September 11, 2002 Letter of Warning.
The grievance was resolved by providing that the Letter of Warning
would be removed from her record 6 months from the date of occurrence.
2Complainant's September 18, 2002 Seven-day (no time off) Suspension
was reduced to an official discussion.
3The record reveals that complainant filed a grievance concerning
management's instruction that she remove her shop steward badge. As a
result of the grievance, complainant was allowed to wear her shop steward
badge at work.