01980415
06-09-1999
Cathy L. Butler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Cathy L. Butler v. United States Postal Service
01980415
June 9, 1999
Cathy L. Butler, )
Appellant, )
) Appeal No. 01980415
v. ) Agency No. 1E-841-1011-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
On October 15, 1997, Cathy L. Butler (hereinafter referred to as
appellant) timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision (FAD) dated September
15, 1997, concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency had discriminated against
her based on her race (black) when she was terminated effective January
16, 1996, from her position at the agency.
BACKGROUND
Appellant was employed by the agency as a Flats Clerk at the Salt Lake
City, Utah Post Office, beginning on September 18, 1993. She was issued
a Letter of Warning (LOW) on March 27, 1995 for "Failure to Maintain
Regular Acceptable Attendance." She was issued her first suspension,
for seven days, on June 19, 1995, for the same reason. She was then
issued her second suspension, for fourteen days, in a letter dated
September 18, 1995, which again cited her "Failure to Maintain Regular
Acceptable Attendance" as the reason. Each instance of discipline was
issued by a different supervisor. Appellant failed to improve her record
of attendance after being issued each of these disciplinary measures.
On December 18, 1995, the agency issued appellant a Notice of Proposed
Removal, to be effective on January 16, 1996, due to attendance problems,
namely her "Failure to Maintain Regular Acceptable Attendance" and an
instance where she had been Absent Without Leave (AWOL).
Appellant initiated EEO Counseling on December 19, 1995. She filed
a formal complaint on March 15, 1996, alleging discrimination on the
basis of race (black) when she was terminated from the agency by
a letter dated December 18, 1995, effective as of January 16, 1996.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified appellant of her right to request an
administrative hearing. After appellant failed to request a hearing,
the agency issued its FAD on September 15, 1997.
In its FAD, the agency found that the appellant had failed to establish
a prima facie case of race discrimination because she was unable to
demonstrate that she was treated less favorably than any comparative
employee who had a similar attendance record. The FAD further stated that
appellant had failed to establish that the legitimate, nondiscriminatory
reason articulated by the agency for its termination decision was a
pretext for discrimination. Appellant timely appeals, without comment.
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 appellant 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
appellant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. 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).
Here, in response to appellant's claims of discrimination, the agency
presented evidence that appellant's attendance record was unsatisfactory.
Appellant was issued discipline three times due to her attendance,
and each time she was warned that if no improvement was shown she could
be subject to termination. We find that the agency has articulated a
legitimate, nondiscriminatory reason for its removal action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. Therefore, the agency's determination
that appellant failed to establish that she was discriminated against
was correct.<1>
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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. �1614.604(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. 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 (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 9, 1999
______________ ______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 We find that the agency erred to the extent that it found that
appellant had not established a prima facie case of race discrimination
because she was unable to demonstrate that she was treated less
favorably than any comparative employee who had a similar attendance
record. We note that to establish a prima facie case, appellant must
only present evidence which, if unrebutted, would support an inference
that the agency's actions resulted from discrimination. Furnco, 438 U.S.
at 576. It is not necessary for the appellant to rely strictly on
comparative evidence in order to establish an inference of
discriminatory motivation necessary to support a prima facie case.
O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem
Steel Corp., 82 F.3d 157 (7th Cir. 1996).