Valarie A. Garza, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 14, 2001
01991389 (E.E.O.C. Dec. 14, 2001)

01991389

12-14-2001

Valarie A. Garza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Valarie A. Garza v. United States Postal Service

01991389

December 14, 2001

.

Valarie A. Garza,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01991389

Agency No. 4G770072698

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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the basis of reprisal for prior EEO activity (filing a prior

EEO complaint) when the postmaster (P1) followed her, accused her of

running a stop sign, and subsequently issued a seven-day suspension

because of her �unsatisfactory safety performance.�

During the relevant time, complainant was employed as a Letter Carrier

Technician at the agency's Orange, Texas facility. On June 13 and June

15, 1998, complainant did not go to work because she was ill. On June

16, 1998, she returned to work. While working her route, complainant

was pulled over by P1. He accused her of running a stop sign, which

complainant denies occurred. On June 29, 1998, complainant was issued

a notice of seven-day suspension. Complainant sought EEO counseling

and subsequently filed a formal complaint on August 14, 1998. 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. The FAD, issued on November 5, 1998,

procedurally dismissed the complaint on the basis that no discipline

was taken against complainant and, as such, she was not �aggrieved.�

The agency subsequently rescinded that FAD on February 9, 1999, finding

that complainant was, in fact, suspended for seven (7) days.

In its new FAD, the agency concluded that complainant failed to establish

a prima facie case of reprisal in that she failed to demonstrate the

causal nexus between her prior EEO activity and the agency's action of

suspending her for seven days. Complainant makes no new contentions in

her instant appeal. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976) (applying McDonnell Douglas to reprisal cases), and assuming

arguendo that complainant established a prima facie case of reprisal,

the agency has the burden of articulating a legitimate, nondiscriminatory

reason for its actions. The agency has met this burden by asserting that

complainant ran a stop sign, and that the the suspension was justified

in light of her previous violations and safety record, and the fact

that she showed no improvement after her prior disciplinary action.

In an attempt to prove pretext, complainant asserts that P1 was mad at

her because she had not come to work on June 13 and June 15, and she

implies that due to his �vendetta� against her, he fabricated this false

allegation. However, even if complainant had persuaded the Commission

that P1 fabricated the allegation that she failed to stop at a stop

sign, we note that her statement suggests that the real reason that

he took the action was his anger at her for failing to come to work,

and not reprisal for her prior EEO activity. The Commission thus finds

that complainant failed to present evidence that more likely than not,

the agency's articulated reasons were a pretext to mask retaliation.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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

December 14, 2001

__________________

Date