01a02821
03-30-2001
Lisa A. Wilt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lisa A. Wilt v. United States Postal Service
01A02821
March 30, 2001
.
Lisa A. Wilt,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02821
Agency No. 1-I-671-0025-99
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. Complainant alleged that she was discriminated
against on the basis of sex (female) when on April 8, 1999, her request
for reinstatement was denied.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's general mail facility
in Wichita, Kansas. The record indicates that complainant was issued a
Notice of Removal (Notice) on February 21, 1996, for unacceptable conduct.
Specifically, complainant was accused of attempting to bribe a training
technician (Trainer) with $100 to pass her so that she could qualify for
a job for which she applied. Complainant filed a grievance on the matter
and, on December 4, 1996, an arbitrator upheld the Notice and denied her
grievance. Complainant then requested that the agency reinstate her on
April 5, 1999. The Plant Manager denied her request on April 8, 1999,
citing her past history which demonstrated complainant's propensity for
dishonesty. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
June 21, 1999. 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, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex-based discrimination. In particular, the
FAD found that complainant's proffered comparators were not similarly
situated.<1>
On appeal, complainant raises the same arguments she raised in her
affidavit. Namely, she contends that she and the Trainer had a close
friendship and that she gave him $100 out of generosity for her friend.
She felt that he needed the money and did not intend to bribe him.
The agency requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment on the basis
of sex. A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792(1973); Loeb v. Textron, 600 F.2d 1003(1st Cir. 1979). For
complainant to prevail, she must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567(1978). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all 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. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Servs.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056(May 31, 1990).
In response to complainant's claim of discrimination, the agency
presented evidence that the Plant Manager denied her request for
reinstatement because of her misconduct. The Plant Manager averred
that he relied on the Investigative Memorandum which was generated out
of the complainant's incident. Based on his review of the memo, the
seriousness of complainant's misconduct, and the agency's guidelines
for personnel actions, the Plant Manager denied complainant's request.
The Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason for its action.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant merely reiterated her claim that she did nothing
wrong and provided conclusory statements that the agency's action was
based on her sex. Upon review of the record, the Commission finds that
complainant has failed to establish that the agency's reasons for denying
reinstatement were in fact pretext.
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 (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
March 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that the three comparators were reinstated either
through a settlement agreement made pursuant to an appeal to the Merit
Systems Protection Board or through a union grievance.