01A42253_r
06-16-2004
Barbara J. Ebona, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara J. Ebona v. United States Postal Service
01A42253
June 16, 2004
.
Barbara J. Ebona,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42253
Agency No. 4E-995-0037-02
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.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk, PS-5, at the agency's Mendenhall Station in
Juneau, Alaska. Complainant sought EEO counseling and subsequently
filed a formal complaint on August 19, 2002, alleging that she was
discriminated against on the bases of sex (female) and in reprisal for
prior EEO activity when:
(1) she was required to submit a PS Form 991 in order to be considered
for an Acting Supervisor (204B) position while a male co-worker was not
required to complete a PS Form 991; and
(2) she was denied 204B assignments since submitting a PS Form 991 on
June 13, 2002.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency found no discrimination. The agency
found complainant did not establish a prima facie case of reprisal
discrimination. The agency concluded that complainant established a prima
facie case of sex discrimination because two male co-workers were allowed
to work as acting supervisors, while she was not allowed to work as an
acting supervisor. The agency further concluded, however, that management
articulated a legitimate, non-discriminatory explanation for its actions.
Moreover, the agency found that complainant failed to present any
evidence which demonstrated that management's articulated reasons for
its articulated reasons for its actions were a pretext for discrimination.
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 legitimate, non-discriminatory reasons for its
employment actions, which we determine were not persuasively rebutted
by complainant. The record in this case contains an affidavit from
the Supervisor Customer Service (SCO). Therein, the SCO stated that all
employees were asked to submit their PS Form 911 prior to being allowed to
be detailed as a 204B (claim (1)). Regarding claim (2), the SCO stated
that complainant was denied 204B assignments because "we are utilizing
the Associate Supervisor Program (ASP) candidates, and trained employees
who were a 204B in the past." The SCO further stated that complainant
was not an ASP candidate and had no previous 204B experience. The SCO
stated that she and the Manager jointly decide who to use as a 204B.
The record also contains an affidavit from the Manager. Therein, the
Manager stated that all employees were asked to complete the PS Form 991
with the exception of a named employee because �she was a Manager until
last year, when she made the decision to go back to craft (claim 1))."
The Manager further stated "although employees are asked to complete a PS
991, no employee to my knowledge has been told they may not be a 204-B if
they did not complete one." The Manager also stated that other employees,
besides complainant, have also expressed an interest in becoming a 204B
but have been denied as well. Regarding claim (2), the Manager stated
"it was not an issue of [Complainant] not being allowed to be 204-B,
but rather a matter of utilizing those who were already trained and
actively pursuing a Supervision position." The Manager stated "there was
a sufficient number of 204-B employees who had experience. [Complainant]
would require some training before being used as a 204-B." Furthermore,
the Manager stated that a male co-worker identified by complainant
selected for a 204B assignment was an ASP candidate. The Manager further
stated that a second male co-worker identified by complainant, who was
selected for a 204B assignment, had previous supervisory experience.
Upon review, we find that complainant has not demonstrated that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Accordingly, the agency's finding of 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
June 16, 2004
__________________
Date