01974296
06-29-1999
Delphine Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Delphine Johnson v. United States Postal Service
01974296
June 29, 1999
Delphine Johnson, )
Appellant, )
)
v. ) Appeal No. 01974296
) Agency No. 4-G-700-1337-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
On April 30, 1997, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from the final decision
of the agency concerning her allegation that the agency discriminated
against her in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination on
the basis of color (medium brown) when she was removed during her
probationary period. The agency accepted the complaint, investigated
the matter, and provided appellant with the right to request a hearing.
When she did not do so, the agency issued a final decision finding that
appellant was not discriminated against as alleged. It is from this
decision that appellant now appeals. It should be noted that appellant
did not make any arguments in her appeal.
The record indicates that appellant was hired under a 90 day contract
and started working with the agency on June 24, 1994. She was terminated
on July 12, 1994. Appellant asserted that she did her job well and got
along with other employees. In her affidavit, she mentions working in
the rain and how it made her sick. Appellant's supervisor provided an
affidavit stating that during appellant's first week of work, she missed
two days of work. The supervisor also stated that appellant tried to
tell her supervisor how the work should be done, complained about the
conditions of her job, took an excessive amount of time to complete
her route, took an additional day off on July 10 1994, and on July 12,
1994, said she was ill again. Hence, appellant was removed for poor
attendance and poor performance. As a comparative, appellant named a
light brown female who complained to the supervisor about drowsiness
from medication and who was allowed to work something other than driving
a jeep and working a route.
Appellant's allegations of color discrimination constitute claims of
disparate treatment which is properly analyzed under the three-tier order
and allocation of proof as set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
The McDonnell Douglas analytical paradigm need not be adhered to
in all cases. In appropriate circumstances, when the agency has
articulated legitimate, nondiscriminatory reasons for its conduct, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, i.e., whether the complainant has
proven by preponderant evidence that the agency's explanations were
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Since the agency has
articulated a legitimate, nondiscriminatory reason for its decisions,
the Commission will consider whether the agency's explanation was a
pretext for discrimination.
We find that appellant has provided insufficient evidence for a finding
of discrimination. Appellant does not dispute that her attendance was
poor given the short period of time she was employed. Appellant did
not provide any evidence or witnesses for her assertion that she was
a good worker. Although the final agency decision provided a detailed
explanation of the agency's reasons for appellant's removal, she provided
no rebuttal on appeal. As such, appellant has failed to show that the
agency's reason for its action was a pretext for discrimination.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
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. �l6l4.604(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 29, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations