01990685
05-18-2000
Cora Page, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Cora Page v. United States Postal Service
01990685
May 18, 2000
.
Cora Page,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes/Midwest Region),
Agency.
Appeal No. 01990685
Agency No. 4-J-493-0023-98
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and sex (female), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against when she was not
utilized as a 204-B Supervisor in the same way (number of hours/tours)
as were comparative supervisors between July 16, 1997, and November 7,
1997. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a PS-05 Distribution Window and Markup Clerk, at the agency's
Jackson, Michigan Post Office ("facility"). Complainant alleged that an
EEO Settlement signed by herself and agency management stated that upon
her return to work from surgery, she would be given a 204-B Supervisory
position on Tour 1.<2> However, when complainant returned to work on
July 16, 1997, she was utilized as a 204-B Supervisor on the evening
shift for about four weeks and on nights for about eight weeks, and
after serving at least one month on Tour 1, she was sent back to work
in her Clerk position while three White males retained their supervisory
positions. Complainant was thereafter terminated from the 204-B program
on November 7, 1997. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
on December 1, 1997. At the conclusion of the investigation, complainant
failed to request a hearing and thus the agency issued a FAD.
The FAD found that complainant failed to establish a prima facie case of
race and sex discrimination. However, the FAD further found that, assuming
complainant had established a prima facie case of discrimination, the
agency articulated legitimate, nondiscriminatory reasons for the conduct
alleged as discriminatory by complainant. In so finding, the FAD noted:
(1) the testimony of the facility Postmaster that other 204-B Supervisors
have been used on more than one tour, and that complainant was returned
to her Clerk position due to her performance and uncooperative attitude;
(2) the testimony of the facility Supervisor, Customer Services (SCS),
who was complainant's immediate supervisor in the 204-B program, that when
complainant returned to work, he did not have a fourth 204-B Supervisor
position open on Tour 1 and thus had to use her on an as needed basis;
the three comparison employees were experienced supervisors who were
filling in for other supervisors on detail; and that complainant was
initially given less hours on Tour 1 as she had to be trained; and (3)
the SCS's testimony that complainant was returned to her Clerk craft
based on her conduct detailed in memos dated July 18, 1997 and November 8,
1997. Specifically, the memos noted that complainant created a disturbance
on the workroom floor, did not show up for work as a 204-B Supervisor
on October 25-26, 1997 and changed her schedule so she would not have
to work on November 1-2, 1997. The FAD further found that complainant
failed to demonstrate that the agency's articulated reasons were more
likely than not a pretext for discrimination. Complainant appeals,
while the agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission finds that the
FAD failed to provide an adequate explanation for its finding that
complainant failed to establish a prima facie case of race or sex
discrimination. Nevertheless, we find that even assuming, arguendo,
that complainant established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. In so finding, the Commission notes that a review of the record
corroborates the testimony of the SCS that complainant was initially was
used as a 204-B Supervisor on as "as needed" basis (evenings and nights)
as there were no vacant 204-B positions on Tour 1 upon her return to
work, and that she was not given as many hours on Tour 1 in July and
August of 1997 as were the three
other 204-B Supervisors as she required supervisory training and the
comparatives did not. In addition, a review of the record demonstrates
that complainant was returned to her Clerk craft due to her conduct
while working as a 204-B and her subsequent attendance problems. Finally,
we find that complainant failed to demonstrate that the agency's reasons
were pretextual in nature. Therefore, after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
and for the reasons noted herein, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 [PAGE 4] 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
May 18, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that management agreed to the settlement "with the
understanding that [complainant's] improved attendance performance
continues." Investigative Report, Exhibit 3.