01a03247
03-26-2001
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.