Carla D. Perry, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 26, 2001
01a03247 (E.E.O.C. Mar. 26, 2001)

01a03247

03-26-2001

Carla D. Perry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carla D. Perry v. United States Postal Service

01A03247

March 26, 2001

.

Carla D. Perry,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03247

Agency No. 4-H-370-0196-97

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 bases of race (Black) and sex (Female) when:

(1) on July 19, 1997, complainant was denied auxiliary assistance and

was placed off the clock; and

complainant was denied 613 (union) time.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier at the agency's Holiday City Post Office

in Memphis, Tennessee. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on July 19, 1997. The agency dismissed claim (2) on September

9, 1997, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a

claim.<1> In its decision to dismiss claim (2), the agency also accepted

claim (1) for investigation. 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 initially requested a hearing before an AJ,

however she withdrew her request by notice dated February 2, 1999.

Instead, complainant requested that the agency issue a final decision.

In its FAD, the agency restated its dismissal of claim (2) pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. In its decision

to dismiss the claim, the FAD found that the record indicated that

complainant's request for union time was granted within thirty minutes

of her request and therefore, her request was not denied. Further,

the FAD found that complainant failed to establish a prima facie case

of race and sex discrimination regarding claim (1). The FAD found that

complainant failed to demonstrate that she was treated differently than

similarly situated persons who were not members of her protected groups.

The FAD also noted that had complainant established a prima facie case

of discrimination, the agency articulated legitimate, nondiscriminatory

reasons for its actions and complainant failed to demonstrate that the

agency's reasoning was pretext for discrimination.

Agency's Dismissal of Claim (2)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). As to the FAD's dismissal of claim

(2), the record indicates that complainant was not denied union time.

Therefore, we find that complainant failed to demonstrate how she was

aggrieved and that the agency properly dismissed the claim pursuant to

29 C.F.R. � 1614.107(a)(1).

Agency's Decision on the Merits of Claim (1)

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.

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. United States

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).

Here, in response to complainant's claims of discrimination, the agency

presented evidence that complainant was denied auxiliary assistance and

placed off the clock on July 19, 1997. The record indicates that the

agency denied complainant's request for auxiliary assistance because

upon review of her route, complainant's supervisor determined that

auxiliary assistance was unnecessary. As to the agency's decision to

place complainant off the clock, complainant's supervisor indicated

that when he explained that her request was denied, complainant became

loud and unprofessional. Based on complainant's continued loud and

unprofessional behavior, the supervisor told her to clock out and leave

the workroom floor. We find that the agency has articulated a legitimate,

nondiscriminatory reason for its action.

Since the agency articulated a legitimate, nondiscriminatory reason

for its action, the burden returns to the complainant to demonstrate

that the agency's articulated reason was a pretext for discrimination.

We find that complainant has failed to do so. Therefore, the agency's

determination that complainant failed to establish that she was

discriminated against was correct. Accordingly, we AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

March 26, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant appealed the agency's dismissal of claim (2) which was

received by the Commission and docketed as EEOC Appeal No. 01980037.

29 C.F.R. � 1614.107(b) provides that where an agency decides that

some but not all of the claims in a complaint should be dismissed,

the agency shall notify the complainant of its determination; however

this determination is not appealable until final action is taken on the

remainder of the complaint. The Commission requested information from the

agency on January 11, 2000, regarding the status of the remaining claim.

The agency informed the Commission that the claim was still pending before

the agency. Based on the agency's response, on February 18, 2000, the

Commission remanded claim (2) to the agency for consolidation with claim

(1) for further processing in accordance with 29 C.F.R. � 1614.107(b)

and administratively closed EEOC Appeal No. 01980037.