Cynthia L. Taylor, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01974105 (E.E.O.C. Oct. 14, 1999)

01974105

10-14-1999

Cynthia L. Taylor, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Cynthia L. Taylor v. United States Postal Service

01974105

October 14, 1999

Cynthia L. Taylor, )

Appellant, )

) Appeal No. 01974105

v. ) Agency No. 1-H-329-1061-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

Appellant timely filed an appeal with the Commission from a final

decision of the agency concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with

EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).

The issue presented in this appeal is whether the agency retaliated

against appellant for previous EEO activity by dismissing her from a

leadership development program (LDP) on February 13, 1996. The agency

employed appellant as a maintenance operations supervisor at its

processing and distribution center for Mid-Florida. She was selected

into the LDP, and was notified of her selection by the LDP manager,

by letter dated November 17, 1995. Investigative Exhibit (IE) 5, p. 3.

The LDP was a selective program, in that those responsible for running the

program sought to admit candidates who exhibited the highest standards of

ethical and professional behavior. IE 2, p. 4; Investigative Affidavit

(IA) B, p. 2, 5; IA C, p. 3. On December 11, 1995, appellant was issued

a letter of warning for improper conduct. IE 7, p. 1. Specifically,

she was charged with violating the code of ethical conduct set forth

in section 661 of the Employee and Labor Relations Manual, when she had

an electronics technician work on her personal computer, which she had

brought from home. The LDP manager testified that he became aware of the

letter of warning at a meeting with the plant manager in February of 1996,

and that a letter of warning for unethical conduct constituted sufficient

grounds for removal from the program. IA B, pp. 2-3; IE 9, p. 1.

To prevail on her reprisal claim, appellant must satisfy the three-part

evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a

prima facie of reprisal by showing: (1) that she engaged in protected

EEO activity; (2) that the agency was aware of that activity; and (3)

that she was subjected to an adverse action at such a time or in such

a manner as to support a causal connection between the two events.

Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,

1994). 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). To ultimately prevail,

appellant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

Appellant testified that she had filed an EEO complaint involving one

of the plant managers several years earlier. IA A, pp. 1-2. The LDP

manager testified that he was not involved in appellant's prior EEO

complaint. IA B. p. 4. He also testified that he did not become aware of

appellant's prior EEO activity until he had his discussion with the two

plant managers. He noted that the manager against whom appellant filed

her prior EEO complaint commented that the decision to drop appellant

from the LDP, "would result in a retaliation EEO complaint." IA B,

p. 3. The LDP manager's testimony establishes that he did not become

aware of appellant's prior EEO activity until after he made the decision

to terminate appellant's participation in the program. Appellant herself

admitted, that she could not determine precisely when the plant managers

first brought her prior complaint to the attention of the LDP manager.

IA A, p. 3. On the basis of this evidence, we find that appellant

failed to establish the necessary nexus between the LDP manager's

decision to drop her from the program and her prior complaint against

the plant manager.

Moreover, even if appellant did establish a prima facie case of reprisal,

the agency's articulated reason for dropping appellant from the LDP

program, that she received a letter of warning, is corroborated by

the letter itself and the LDP manager's testimony. Appellant has not

presented any documents or testimony, apart from her own assertions, which

contradicts the LDP manager's testimony or undermines his credibility

as a witness. We therefore find that appellant has not shown that this

reason is a pretext for reprisal.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that reprisal occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

Oct. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations