01A21715
03-10-2003
Eulah B. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eulah B. Bailey v. United States Postal Service
01A21715
March 10, 2003
.
Eulah B. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21715
Agency No. 4I-640-0080-00
DECISION
INTRODUCTION
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.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Computer Forwarding System (CFS) Clerk, PS-4, at the
agency's Processing and Distribution Center in Kansas City, MO.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 14, 2000, alleging that she was discriminated against
on the basis of reprisal for prior EEO activity when she was placed
on emergency suspension and issued a Letter of Warning (LOW). Also,
complainant alleged discrimination for four issues which were dismissed
by the agency for failure to state a claim.<1>
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. Complainant
initially requested a hearing before an EEOC Administrative Judge but
withdrew the request for a hearing and requested that the agency issue
a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of retaliation, and failed to submit any evidence that
the agency's reasons for its actions were pretext or were motivated
by discriminatory animus based on complainant's prior EEO activity.
The three job �discussions� and a manager's statement were dismissed by
the agency for failure to state a claim because complainant failed to
show that she suffered any harm as a result of the agency's actions.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the Letter of Warning was issued to
cover up the fraudulent acts of her manager (M1) and that the allegations
against her are being �padded.�<2> The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process as set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973) and its progeny.
See, Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation 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
complainant 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, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Regarding complainant's claim of reprisal, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of reprisal discrimination. We now
consider whether the agency articulated legitimate, nondiscriminatory
reasons for its actions. Concerning placement on emergency suspension,
the agency submitted that on March 31, 2000, complainant was loud,
disruptive, yelling and not following M1's instructions. Also, that after
M1 instructed complainant to clock out and leave the unit, complainant
failed to follow this instruction and remained in the break area.
Subsequently, for this and other conduct, e.g., reading customers' mail,
leaving assignment area without permission, and constantly questioning
instructions, complainant was issued the LOW.
These are legitimate, nondiscriminatory reasons for the agency's action.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. Complainant claims that the
emergency suspension and the LOW were issued because she questioned a
leave slip that had been changed, and that M1 was monitoring her actions
because she had filed prior EEO complaints. Complainant also implies
that the agency's list of thirteen dates when she was supposed to have
been loud and argumentative but nonetheless allowed her to stay in the
unit does not support the issuance of the LOW. The complainant has not
met her burden to show pretext in this regard.
Although the purview accepted for investigation was retaliation,
complainant's affidavit states that she was also discriminated against
due to race, color, and harassment, i.e., a manager stated that �You're
going to learn to stop saying little smart things.� However, these
allegations are not otherwise supported by complainant or the record.
Also concerning harassment, while we note harassment of an employee that
would not occur but for the employee's race, color, sex, national origin,
age, disability or religion is unlawful, if it is sufficiently patterned
or pervasive, McKinney v. Dole, 765 F.2d 1129, 1138, (D.C. Cir. 1985),
a single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). We find that the remark
does not establish discriminatory harassment.
After reviewing the record, we find insufficient evidence of
discriminatory animus or retaliatory motive as to all allegations, and
find that complainant has not provided sufficient evidence to persuade
us that the agency's reasons for its actions were a pretext for race,
color, and harassment discrimination or reprisal.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, 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
March 10, 2003
Date
1 Complainant requested that her complaints be consolidated. The
dismissed issues consisted of three job �discussions� and a statement
by a manager. This decision will review the dismissed issues.
2 On January 7, 2003, complainant filed with the Commission materials
which included papers already filed in this matter, as well as a
supplement to the previously filed response, a typed version of her
handwritten affidavit, and affidavits and other papers relating to EEOC
Appeal No. 01A30503, filed October 29, 2002.