01970415
06-29-1999
Barbara A. Palmer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara A. Palmer v. United States Postal Service
01970415
June 29, 1999
Barbara A. Palmer, )
Appellant, )
)
v. ) Appeal No. 01970415
) Agency No. 4-F-950-1037-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against her
on the bases of sex (female) and reprisal (prior EEO activity) when, on
October 23, 1995, she was the only Carrier Technician given a route count
(or route inspection); she was told not to stop for petrol; and she was
given incorrect information regarding the physical size of the letters
to be sorted into the mail case, which would affect her performance.
BACKGROUND
In a complaint dated January 23, 1995, appellant, then a Carrier,
T-6, at the agency's Aptos, California, Post Office, alleged that the
agency discriminated against her as delineated in the above-entitled
statement "Issue Presented." The agency conducted an investigation,
provided appellant with a copy of the investigative report, and advised
appellant of her right to request either a hearing before an EEOC
administrative judge (AJ) or an immediate final agency decision (FAD).
Appellant requested an immediate FAD. On September 26, 1996, the agency
issued a FAD finding no discrimination. It is from this decision that
appellant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
appellant herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This
means that the complainant must present a body of evidence such that,
were it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur.
Appellant has established a prima facie case of sex discrimination, in
that the male Carrier technicians were subjected to only one-day route
counts; none were denied permission to stop for petrol; and none had any
dispute with the supervisor regarding the size of letters to be sorted.
See Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865
(6th Cir. 1975). Appellant also has established a prima facie case of
reprisal discrimination, in that she litigated an EEO complaint shortly
before the events at issue; at least one of the management officials
involved in matters giving rise to the instant complaint was aware of
appellant's prior EEO activity; appellant arguably was disadvantaged
by the agency's actions; and the temporal relationship of the events
at issue to her protected activity was such that a causal connection
fairly may be inferred. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The burden now shifts to the agency to articulate a legitimate,
non-discriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the
agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. The agency has met this burden by
explaining (1) that appellant's route inspection took four days because
it was conducted to establish base office and street times for her route;
(2) that appellant's request to stop for petrol was denied because the
fuel tank in appellant's vehicle was still about half full, and stopping
for fuel would have caused her to incur 15 minutes of overtime; and (3)
that appellant and her supervisor had agreed on the size of the letters
to be used for her mail count.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. Here, appellant has not produced evidence
that the agency's actions more likely than not were the result of
sex-discriminatory or retaliatory animus. Appellant noted that on the
last day of the route inspection, she was informed that the physical
size of the letters used for the mail count would be changed, but she
was made aware of this fact prior to the count, and it did not adversely
affect her performance.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. Filing a civil action will terminate the
administrative processing of your complaint.
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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations