01A32753_r
07-02-2003
Beverly J. Fleming, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly J. Fleming v. United States Postal Service
01A32753
July 2, 2003
.
Beverly J. Fleming,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32753
Agency No. 1-H-374-0059-99
DECISION
INTRODUCTION
Complainant timely initiated an appeal from an agency's final decision
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.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
the agency discriminated against her on the bases of race (Caucasian)
and sex (female) when she was denied the opportunity to attend training
on July 25, 1999.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Vehicle Operations Assistant at the agency's Memphis, Tennessee Bulk
Mail Center facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on September 8, 1999. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge (AJ) or alternatively, to
receive a final decision by the agency. Complainant requested an agency
decision without a hearing. In its decision, the agency concluded
that complainant failed to prove a prima facie case of discrimination
based on race and sex as she failed to show that she was treated less
favorably than similarly-situated employees outside her protected groups.
The agency stated that assuming arguendo that complainant did establish
a prima facie case of discrimination, complainant failed to rebut
management's articulated legitimate nondiscriminatory reason for its
action, namely that complainant was not selected for VTAPS training
because her supervisor did not recommend her.
Complainant makes no arguments on appeal. The agency requests that we
affirm its final decision.
ANALYSIS AND FINDINGS
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, he 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.
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. 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. 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. U.S. Postal
Service Bd. 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).
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its action. The record contains an
affidavit from Person A, Supervisor Transportation Networks, stating
that selections to attend training in Cincinnati were made based on the
needs of the service and the recommendations being made by supervisors
and managers. Person A stated that he was the supervisor for employees
on Tour Two, and noted that since complainant was a VOA on Tour Three,
she was not one of the employees eligible for him to select. Further,
the record contains an affidavit from Person B, Manager Transportation
Networks, who stated that she recommended some employees and requested
that her supervisors submit names for employees to serve as VTAP trainers.
Person B noted that selections for the training were made by the VTAP
Coordination Team and restated that complainant was not considered because
her supervisor did not recommend her. Thus, we find that the agency
has articulated legitimate, nondiscriminatory reasons for complainant's
nonselection for training.
The burden turns to complainant to establish that the agency's legitimate,
nondiscriminatory reason was pretextual. The Commission finds that
complainant failed to rebut the agency's reasons.
Therefore, we AFFIRM the final decision finding no discrimination.
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
July 2, 2003
__________________
Date