01a10020
02-01-2001
Kim Wortham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kim Wortham v. United States Postal Service
01A10020
February 1, 2001
.
Kim Wortham,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10020
Agency No. 4F-907-0013-97
Hearing No. 340-97-3667X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her formal 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the agency's final
order is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has established,
by preponderant evidence, that she was discriminated against on the
bases of race (Black) and sex (female) when she was issued a seven-day
suspension for Unsatisfactory Work Performance - Failure to Adhere to
Safe Driving Practices; and Unsatisfactory Work Performance - Failure
to Report an Accident.
BACKGROUND
Complainant, employed by the agency as a Mail Carrier (PS-05) at the
time of the alleged discriminatory event, filed a formal complaint on
November 5, 1996, in which she alleged what has been identified as the
issue presented. The agency accepted the complaint for investigation.
At the conclusion of the investigation, complainant received a copy of
the investigative report and was informed of her right to either request
a hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision from the agency without a hearing. Complainant requested the
former. After gathering evidence and information at the Prehearing
Conference, the AJ determined that there were no genuine issues of
material fact, and therefore decided to issue a decision without a
hearing.<2> That decision ruled that complainant failed to establish
a prima facie case of discrimination, and that she failed to provide
information indicating that the agency's stated reasons for its action
was a pretext for discrimination. The agency's final order implemented
the AJ's decision. This appeal followed.
Information in the evidentiary file indicates that, in addition to her
duties as a Mail Carrier, complainant was also charged with providing
on-the-job-training to new employees. On August 16, 1996, complainant,
while training an employee, was traveling in her vehicle in the course of
delivering mail. On one particular street, a trash truck was parked on
the left side curb while its driver was collecting trash. Several cars
were parked on the right side curb of the street. Complainant attempted
to maneuver her vehicle between the trash truck and one of the cars.
Consequently, she was unable to obtain the proper clearance and her left
outside mirror collided with the right outside mirror of the trash truck.
This collision caused complainant's mirror to break. When complainant
returned to the Post Office, she did not immediately report the accident
to the proper officials. Instead, she waited until the next day.
As a result, complainant was issued a seven-day suspension.<3>
ANALYSIS AND FINDINGS
Summary Judgment Ruling
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of
the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render
a determination as to the truth of the matter, but only to determine
whether there exists a genuine factual dispute. Anderson, 477 U.S. at
248-49. After examining the testimonies of the various witnesses and
other evidence provided by the parties, we find that no genuine issue
of material fact exists in this case; and therefore the AJ's decision
to issue a ruling without a hearing was appropriate.
Race and Sex Discrimination
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 actions. 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, we find that the agency has stated a legitimate,
nondiscriminatory reason for its action. Specifically, the agency stated
that complainant was suspended for seven days because her negligence
caused an accident which she failed to report in a timely manner.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant has failed to meet that burden. In attempting to prove
that the agency's stated reason was a pretext for discrimination,
complainant alleged that she did not report her accident immediately
because, when she returned to the Post Office, she could not find any
of the officials to whom she was supposed to report such information.
But agency policy clearly dictates that:
[o]perators involved in accidents. . . shall remain at the scene
[of the accident] until they have. . . notified the Postmaster or his
designee. . . [and]. . . completed [Form] SF 91, Operator's Report of
Motor Vehicle Accident. This report may be prepared at the scene of the
accident or immediately thereafter and must be submitted, before going
off duty on the day of the accident, to the employee's superior.
Complainant also alleged that two other employees (one a Black male, the
other a White male) were not given seven-day suspensions for engaging
in similar conduct. Information in the file, however, indicates that
those two employees were given seven-day suspensions for their conduct.
Based on the forgoing, we find that complainant has failed to show
that the agency legitimate, nondiscriminatory reason was a pretext for
discrimination.
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 hereby AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 1, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2In a statement filed with her appeal, complainant stated that she was
not notified of a second Prehearing Conference that may have been held.
Complainant's belief that there may have been a second Prehearing
Conference appears to be based on a statement in the AJ's decision which
reads: �A second Notice of Prehearing Conference and Order were sent on
February 25, 2000.� It appears that complainant misinterpreted the AJ's
statement. The second Notice of Prehearing Conference and Order does
not indicate that there was a second Prehearing Conference. Instead,
it indicates that the parties were notified, for the second time,
of the �first� Prehearing Conference. We note that complainant does
not contend that she was unaware of the �first� Prehearing Conference.
We also note that the file does not contain any evidence that a second
Prehearing Conference was held.
3Complainant filed a union grievance regarding the seven-day suspension.
Her union representative requested a reduction of the suspension to two
days, one as a non-scheduled day. The agency and the union agreed that
the seven-day suspension would be reduced to two days, each to be served
in two separate pay periods.