0120072816
12-03-2009
Abbie N. Fisher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Abbie N. Fisher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120072816
Hearing No. 450200700074X
Agency No. 4G780022006
DECISION
On July 10, 2007, complainant filed an appeal from the agency's April 27,
2007 notice of final action concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
and the Age Discrimination in Employment Act of 1967 (ADEA). For the
following reasons, the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
Whether the complainant proved that the agency retaliated against her
for previously engaging in EEO activity when it delayed the processing
of her request for leave donations.
BACKGROUND
Complainant worked as a Part-Time Flexible Carrier at the agency's
Odessa Northeast Station facility in Odessa, Texas. On August 17, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of age (45), race (African-American), color
(black), and in reprisal for prior protected EEO activity when the
customer service supervisor (S) delayed the processing of her request
for donated leave.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ granted
the agency's January 29, 2007 motion for a decision without a hearing.
The AJ issued her decision on April 9, 2007, finding complainant failed to
prove that she was subjected to discrimination and retaliation as alleged.
The agency subsequently issued a notice of final action fully implementing
the AJ's decision.
CONTENTIONS ON APPEAL
Complainant does not challenge the AJ's findings that she failed to prove
her race, color, and age discrimination claims.1 She appeals only the
AJ's finding that the agency did not retaliate against her because of
her prior her EEO activity. Specifically, complainant takes issue with
the AJ's finding that she established a prima facie case of retaliation
but failed ultimately to carry her burden of persuasion that the agency
retaliated against her.
The agency contends that the AJ properly decided the issue because it
articulated a legitimate, nondiscriminatory and non-retaliatory reason
for S's conduct, and that complainant did not show the reason to be
pretext.
ANALYSIS AND FINDINGS
As the judge correctly summarized, in order to establish a claim of
reprisal or retaliation, complainant must show that: (1) she engaged
in prior EEO activity; (2) she was subjected to an adverse employment
action; (3) the agency official who was responsible for the adverse
action was aware of the protected activity when he made the adverse
decision; and (4) the adverse action closely followed the EEO activity,
or was related in some other manner, such that it raises an inference of
a nexus between the EEO activity and the adverse action. Wrenn v. Gould,
808 F.2d 493 (6th Cir. 1987); Irby v. Sullivan, 737 F.2d 1418 (5th
Cir. 1985). However, the case does not end there. If the complainant
establishes a claim, it is incumbent on the agency to articulate a
legitimate, nondiscriminatory reason for the adverse action. If the
agency meets this burden of going forward, complainant must establish
that the reason articulated by the agency is not the real reason, i.e.,
that the reason is a pretext, in order to prevail.
Here, the AJ correctly found complainant established a prima facie case of
retaliation. Specifically, complainant showed that she engaged in prior
EEO activity on dates between December 18, 2004 and January 20, 2006.
She also showed that on April 21, 2006,2 she submitted a form requesting
leave donations for medical reasons to S, which he initially told her
he would approve, and that he subsequently denied the request and set
the request form aside without telling her. Complainant showed that S
was aware of complainant's prior EEO activity at the time he denied her
request, and that her most recent activity ended only 3 months before
the denial.
Using the rubric outlined above, the agency articulated a
nondiscriminatory reason for S's denial of complainant's leave request.
S stated that after receiving the request, he read the guidelines for
the leave donations, and determined that complainant was not eligible
because the medical condition for which she wanted to receive donated
leave had been the subject of a workers' compensation claim she filed.
S also explained that complainant's request was the first such request
he ever reviewed and that he was not familiar with the process. It was
not until complainant's union representative inquired about the status
of her request that S became aware that she was indeed eligible.
Next, it was complainant's burden to refute the agency's stated reason.
This she failed to do. Had such evidence existed, complainant might
have established that S's unfamiliarity with the leave donation process
was not the true reason or the primary reason her request was delayed.
Complainant argues that S should have informed her that he had denied the
request, and that he should have consulted with a superior because he
would have learned that he was mistaken and her request would not have
been delayed. Certainly, either of those might have been a better,
more responsible course of action. However, the Commission cannot
ascribe an ulterior, discriminatory motive to S simply because he made
a mistake and/or did not follow up with complainant or a superior.
Title VII does not protect employees from erroneous and unfair
decisions; it protects against decisions motivated by unlawful animus.
Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977).
Because complainant has not established that S's decision was motivated
by retaliation, we find that no discrimination occurred.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
notice of final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 3, 2009
__________________
Date
1 Complainant also does not challenge the AJ's determination to issue
a decision without a hearing.
2 At S's request complainant, redid the form on April 28, 2006, to
correct errors.
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0120072816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072816