05960831
10-01-1998
Tina M. Segarra, Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, Agency,
Tina M. Segarra v. United States Postal Service
05960831
October 1, 1998
Tina M. Segarra, )
Appellant, )
)
v. ) Request No. 05960831
) Appeal No. 01951940
Marvin T. Runyon, Jr., ) Agency No. 4E-870-1084-94
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION ON REQUEST TO RECONSIDER
INTRODUCTION
On August 26, 1996, appellant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision
in Tina M. Segarra v. Marvin T. Runyon, Postmaster General, United
States Postal Service, EEOC Appeal No. 01951940 (August 15, 1996).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence that
tends to establish one or more of the three criteria prescribed by 29
C.F.R. �1614.407(c): that new and material evidence was available
that was not available when the previous decision was issued,
29 C.F.R. � 1614.407(c)(1); that the previous decision involved an
erroneous interpretation of law or regulation, or material fact, or a
misapplication of established policy, 29 C.F.R. � 1614.407(c)(2); or
that the decision is of such exceptional nature as to have substantial
precedential effects, 29 C.F.R. � 1614.407(c)(3). For the reasons set
forth herein, the Commission GRANTS appellant's request.
ISSUE PRESENTED
Whether the agency discriminated against appellant on the basis of sex
by denying her the opportunity to case additional mail routes.
BACKGROUND
The agency employed appellant as a letter carrier at its Highland Station
facility in Albuquerque, New Mexico. She filed a complaint in which
she alleged that the station manager discriminated against her on the
bases of race and sex by instructing her supervisors not to allow her
to case additional mail routes, ostensibly because she was not on the
overtime-desired list (ODL). The agency investigated the complaint and
notified appellant of her right to request a hearing. Appellant declined
to do so, and the agency issued a final decision finding that appellant
failed to establish a prima facie case of race or sex discrimination.
The previous decision affirmed the agency's finding.
Appellant stated in her affidavit that, on January 29 and March 4, 1994,
she was informed by two 204-B supervisors that she was not permitted to
case additional mail routes any longer, because she was not on the ODL.
She stated that, on March 31 and April 23, 1994, two white male letter
carriers (identified in the previous decision as CE-1 and CE-2) who
were not on the ODL were permitted to case two additional routes each.
She further stated that when her supervisors questioned the station
manager about his decision, they were told to, "do what the union wants."
The station manager stated that he instructed the 204-B supervisors
that anyone not on the ODL should not be allowed to case more than one
route if they could not complete their own assignment in 8 hours or less,
except in an extreme emergency. When asked by the investigator whether
he told the two 204-B supervisors to acquiesce to the demands of the
union, the station manager stated that union officials complained that
appellant was casing additional routes and having to be assisted in order
to complete the primary assignment within 8 hours, and that he did not
receive any complaints from the union about any other non-ODL employees.
As to the assignments of CE-1 and CE-2 on the days in question, the
station manager admitted that CE-1 cased an additional route on April 23,
1994.<1> The station manager acknowledged that CE-1 was not on the ODL
and that he should not have been allowed to case a second route unless he
could complete both assignments without incurring overtime. The station
manager also indicated the decision to allow CE-1 to case the second
route was made by the 204-B supervisor on duty at the time (identified
as S-1 in the previous decision), and that the union never contested
S-1's decision.
The station manager further testified that ten new routes had been created
within the past year, and that the facility was under pressure to meet
productivity goals. He stated that the union and management agreed to
allow everyone to assist in casing the routes, whether they were on the
ODL or not, and that after several months, the union decided to curtail
the practice of using non-ODL employees to case additional routes.
He emphasized that complaints arose when inexperienced supervisors made
decisions which resulted in violations of the collective bargaining
agreement, and that it was difficult for supervisors to get out of the
habit of using experienced carriers to case vacant routes.
S-1 testified that management used carriers to case vacant routes due
to unforeseen situations such as annual leave or sick leave. He further
testified that he attempted to use the most qualified individual, if
possible, in order to case the routes as soon as possible. S-1 also
stated that he was instructed by the station manager not to use appellant,
and to use only those on the ODL, if possible. He indicated that union
officials complained about non-ODL personnel casing additional routes
only when appellant was involved, because she was non-union.
S-1 admitted that CE-1 cased an additional route on April 23, 1994,
while not on the ODL, and that he incurred .16 units of overtime.
He also admitted that CE-2 cased an additional route on March 31, 1994,
and that he was not on the ODL that day. He stated, however, the CE-2
completed the second route without incurring overtime.
Another acting supervisor (S-2) confirmed that on March 31, 1994, CE-1
was on the ODL, but not CE-2. He also confirmed that on April 23,
1994, CE-2 was on the ODL, but not CE-1. He testified that CE-1 was
on annual leave on March 31, 1994<2>, and that he was instructed by the
station manager that employees who were going to case additional routes
should be on the ODL unless they could complete the additional route in
under 8 hours. He did not recall the station manager telling him to,
"do what the union wants." Finally, S-2 confirmed that union members
did not complain about non-ODL employees casing additional routes unless
it was appellant, and that he told appellant about the complaints from
the union.
The rules governing overtime assignments are set forth in Article 8.5
of the collective bargaining agreement. In general, employees desiring
overtime are required to put their names on the ODL two weeks before
the start of each quarter. If the ODL does not provide enough qualified
people, local management has the discretion to allow non-ODL employees
to work overtime under exceptional circumstances.
In her request for reconsideration appellant maintains that CE-1 and CE-2
were allowed to case additional routes, even though they were not on the
ODL when they did so, regardless of whether they incurred overtime or not.
She reiterates that she was denied that same opportunity. In effect, she
maintains that she did establish a prima facie case of discrimination.
ANALYSIS AND FINDINGS
We are reconsidering our previous decision because we disagree that
appellant failed to establish a prima facie case of discrimination.
For the reasons, set forth below, however, we find that appellant
has not established that the reason articulated by the agency for not
allowing appellant to continue to case additional routes was a pretext
for discrimination.
Under the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), appellant must
initially establish a prima facie case of discrimination. The agency
must then articulate a legitimate, nondiscriminatory reason for its
actions. Finally, appellant must show that the agency's articulated
reason for its actions was merely a pretext for discrimination. 411
U.S. at 802-05.
To establish a prima facie case, appellant must present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). We agree with our previous decision that appellant did not
establish a prima facie case of race discrimination.<3> We find, however,
that appellant did establish a prima facie case of sex discrimination.
CE-1 cased an additional route on April 23, 1994, but was not on the ODL.
CE-2 cased an additional route on March 31, 1994. Appellant, who was also
not on the ODL, was denied the opportunity to case an additional route.
Thus, two male letter carriers were given a benefit that was denied
appellant. This is sufficient to establish a prima facie case.
Now that appellant has established a prima facie case, the burden
shifts to the agency to articulate a legitimate, nondiscriminatory
reason for not allowing appellant to case additional routes. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The agency's articulated reason for not allowing appellant to continue
to case additional routes is that union officials complained whenever
she was permitted to case more than one route, and were concerned that
she could not complete the additional assignment without incurring
overtime. We find this reason to be legitimate and non-discriminatory.
The burden now returns to appellant to establish pretext. She may do
so by demonstrating that it is more likely than not that the agency
was motivated by discrimination. Burdine, 450 U.S. at 256; St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995). It appears
from the record that the union objected to appellant being allowed to
case additional routes because of her non-union status, and that union
officials expressed their concerns to the station manager about whether
she could complete the extra assignment without incurring overtime.
Apparently, union officials were concerned that a non-union employee
would be allowed to incur overtime before their own members. Not wanting
to create a conflict situation, the station manager told S-1 and S-2 to
utilize employees on the ODL for casing additional routes, and not to
use appellant.
On March 31, 1994, CE-1 was on the ODL, but was on annual leave on
that date, and S-1 was left to find a substitute in order to keep
the mail moving. S-1 gave the additional route to CE-2, who was not
on the ODL, but did not incur any overtime. CE-1 cased an additional
route on April 23, 1994, and was not on the ODL on that date. He did,
however incur a minuscule amount of overtime while completing the route.
Moreover, there are no indications in the record that CE-1 and CE-2 did
not belong to the union.
The station manager's testimony is supported by the affidavits of
the two acting supervisors who were on duty at the time, S-1 and S-2.
All three witnesses stated without contradiction that union officials
objected whenever appellant was allowed to case additional routes,
and that this was due to the fact that appellant was not a member
of the union. There were no indications that the union officials
similarly complained when CE-1 and CE-2 worked additional routes on
the days in question. One comparative did not incur any overtime,
the other incurred an insignificant amount of overtime. Moreover,
the station manager acknowledged that S-1 may have made a mistake in
assigning CE-1 to case the additional route on that April 23, 1994, due
to his relative lack of experience as a supervisor. Appellant has not
presented documents or testimony sufficient to establish that either S-1,
S-2 or the station manager was motivated by considerations other than
avoiding friction with the union in not allowing her to continue to case
additional routes. Her request for reconsideration does not contain any
arguments or evidence which contradicts the testimony given by the station
manager, S-1 or S-2, or which undermines their credibility as witnesses.
We therefore find that appellant has not shown that she was subjected
to sex discrimination when she was told that she could no longer case
additional routes without being on the ODL.
CONCLUSION
After a review of appellant's request to reconsider, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission
to GRANT appellant's request. The decision of the Commission in EEOC
Appeal No. 01951940 finding that appellant failed to establish a prima
facie case of sex discrimination is MODIFIED in accordance with this
decision. There is no further right of administrative appeal from the
Commission's decision on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
OCT 1, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The previous decision incorrectly stated that CE-2, rather than CE-1,
cased two routes and worked overtime on April 23, 1994.
2The previous decision incorrectly noted that CE-2, rather than CE-1,
was on annual leave on March 31, 1994.
3The fact that both of the comparative employees who appellant identified
are in her racial group would not, by itself, defeat a prima facie case
of race discrimination. O'Connor v. Consolidated Coin Caters Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
In this case, however, appellant has not presented any evidence from
which to infer that she was treated differently because of her race.