01A13810_r
12-19-2002
June R. Lathum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
June R. Lathum v. United States Postal Service
01A13810
December 19, 2002
.
June R. Lathum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13810
Agency No. 4-H-350-0097-00
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 Distribution Clerk at the agency's Tuscaloosa, Alabama
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on June 8, 2000, alleging that she was discriminated
against on the bases of race (Caucasian) and reprisal for prior EEO
activity when on March 21, 2000, she was issued a 14- day suspension
for unsatisfactory work performance.
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.
In its FAD, the agency concluded that complainant was not subjected to
discrimination based on her race or in reprisal for prior EEO activity
when she was issued a 14-day suspension for leaving work early.
The agency also determined that complainant had alleged that she had
left work early due to unnecessary verbal harassment. The agency
determined, however, that it was unable to identify any specific
incidents of harassment, and found that complainant's harassment claim
was unsupported by the record.
Complainant raises no new arguments on appeal and the agency requests
that we affirm its FAD.
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. McDonnell Douglas Corp v. Green,
411 U.S. 792, 802-803 (1973); 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).
First, complainant must 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. McDonnell Douglas,
411 U.S. at 802. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its action. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
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 Administration,
EEOC Request No. 05960403 (December 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,
a complainant may establish a prima facie case of reprisal by showing
that (1) she engaged in protected activity; (2) the agency was aware of
her 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.
Complainant claims that the agency suspended her because of her race
and in reprisal for her prior EEO activity. We find no evidence in the
record to support her claims. With respect to complainant's race claim,
we find that complainant failed to show that she was treated differently
than similarly situated employees when she was issued a 14-day suspension
for unsatisfactory work performance. Concerning complainant's claim
of reprisal discrimination, complainant has not established a nexus
between the suspension issued and her prior EEO activity. Moreover,
even assuming complainant established a prima facie case of race and/or
reprisal discrimination, she failed to show that the agency's stated
reasons for its actions, i.e., that complainant was suspended because she
left her work station prematurely without completing mail distribution,
was a pretext to mask discrimination.
Finally, regarding the issue of harassment, the evidence in the record
is insufficient to support a finding that management's actions against
complainant were sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Based on the foregoing, the Commission finds that complainant failed
to present evidence that the agency's actions were in reprisal for
prior EEO activity or were motivated by discriminatory animus toward
complainant's race. Accordingly, the agency's decision is AFFIRMED for
the reasons set forth herein.
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
December 19, 2002
__________________
Date