01A42138
07-13-2004
Cordelia P. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Cordelia P. Williams v. United States Postal Service
01A42138
July 13, 2004
.
Cordelia P. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42138
Agency No. 4H-327-0008-03
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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Part-Time Flexible Clerk (PTF clerk), Grade Level 5, at
the agency's Palm Beach Post Office. Complainant sought EEO counseling
and subsequently filed a formal complaint on December 24, 2002, alleging
that she was discriminated against on the bases of race (African-American)
and reprisal for prior EEO activity<1> when:
(1) On September 3, 2002, complainant was denied an accommodating work
schedule to assist her in getting her child to school; and,
Complainant did not receive as many work hours as a White female
PTF clerk.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
BACKGROUND
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination based on race or reprisal for prior
EEO activity. As to the claim of race discrimination, the agency found
that complainant failed both to show she was subjected to an adverse
employment action, and that she was treated differently than similarly
situated individuals outside of complainant's protected class. The agency
asserts that complainant was accommodated with a change of schedule to
the extent possible. Following her request not to work before 7 a.m.,
complainant was only scheduled before that time once between pay period
19 until pay period 26. Likewise, the agency concluded that the White
female used for comparison actually worked less hours than complainant,
not more; therefore, any difference in treatment actually was to the
benefit of complainant. As to the reprisal claim, the agency concluded
that complainant failed to establish that she was disadvantaged by any
adverse action or that there was a link between her protected EEO activity
and the adverse action. Again, the agency contends that complainant
actually received an equal or greater number of hours compared to other
PTF clerks during the relevant time period. Moreover, complainant failed
to prove that her participation in prior EEO activity had any bearing on
scheduling decisions. Complainant makes no new contentions on appeal.
The agency requests that we affirm its FAD.
FINDINGS AND ANALYSIS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corp. v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. 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
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner 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).
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima facie
case of discrimination based on race or reprisal for prior EEO activity.
In order to establish a prima facie case of discrimination on the basis
of race, complainant must show: (1) she belonged to the claimed protected
class; (2) she was subjected to an adverse employment action; and (3) she
was treated less favorably than similarly situated employees who are not
members of the protected group. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). We concur with the agency's analysis of these
issues. While it is undisputed that complainant belongs to a protected
class, the second and third prongs were not adequately established by the
complainant. The record contains a detailed accounting of complainant's
start times during the period in question, and the record reveals
that complainant was only scheduled before 7 a.m. one time. The record
further reflects that PTF clerks are not typically given a fixed schedule
in order to maintain operational efficiency. Any accommodations that
were made depended on whether it was feasible at that time. The fact
that complainant was accommodated, to the extent she was, cuts against
an inference of an adverse employment action. Likewise, because
complainant actually received more hours than her asserted comparison
employee, she was not treated less favorably. Complainant, however,
asserts that the comparison female was given more eight-hour shifts,
forcing complainant to work more four-hour days in order to make up her
weekly hours. This assertion, however, is unsupported in the record.
Therefore, we concur with the agency's determination that complainant
failed to establish a prima facie case of race discrimination.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The record reflects that complainant participated in prior EEO activity of
which the agency was aware. Nevertheless, for the same reasons outlined
above, complainant was not subjected to adverse treatment because her work
schedule was accommodated to the greatest extent possible. Likewise,
because complainant was not subjected to adverse treatment, we find no
need to address the final nexus element of a prima facie case of reprisal.
Even assuming complainant established a prima facie case on the bases
of race and reprisal, we find that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Namely, the agency maintains
that its employment policies require that PTF employees be scheduled in
a flexible manner to maintain an efficient operation. Complainant has
failed to establish that the agency's reason was a pretext for unlawful
discrimination. Therefore, after a careful review of the record and
arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
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 13, 2004
__________________
Date
1The record indicates, and the agency does
not dispute, that complainant participated in prior protected activity,
but it is unclear under which statute(s) such activity occurred.