01995349
10-31-2001
Majoria Bragg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Majoria Bragg v. United States Postal Service
01995349
10-31-01
.
Majoria Bragg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995349
Agency No. 4-I-500-0043-98
Hearing No.
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e et seq. (1994 & Supp. IV 1999) (Title VII). The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE
Complainant alleged that she was retaliated against for earlier
participating in equal employment opportunity (EEO) activity when:
1) on July 2, 1998, complainant was issued a seven-day suspension for
failure to complete her route on June 27, 1998; 2) on August 18, 1998,
complainant was forced to work overtime on her scheduled day off; 3)
on August 18, 1998, complainant learned that a co-worker junior to her
was allowed to leave work early on June 27, 1998 while complainant was
required to remain on the job; and 4) on September 23, 1998, complainant
learned that her annual leave request for September 21 - September 23,
1998 was approved on September 10, 1998, but she was not notified of
this approval.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a letter carrier at the agency's Rock Island, Illinois facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on Oct. 19, 1998 and
Nov. 19, 1998. 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 requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant was not retaliated
against as alleged.
Both parties raised the same matters on appeal as were raised below.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima facie
case of reprisal discrimination because the earlier EEO activity which
complainant believed formed the basis of the agency officials' animus
occurred in 1993 and 1994, too far removed in time from the instant 1998
events to show a nexus between the events. Patton v. Department of the
Navy, EEOC Request No. 05950124 (June 27, 1996) (two year lapse between
events too long to establish nexus).
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant failed to show 1) that the agency's count and
inspection of her route on June 27, 1998 was in error or that complainant
was treated differently than similarly situated co-workers; 2) that
on August 18, 1998, other employees who were junior to complainant on
the seniority list were available to work; 3) evidence refuting the
non-discriminatory assertion that complainant's co-worker was allowed
to leave work because complainant's supervisors did not know how much
work had to be completed by complainant; and 4) evidence refuting her
supervisor's assertion that signed and approved leave request forms
delivered on September 10, 1998 were not returned to employees until
September 16, 1998, and because at complainant's request the supervisor
had earlier signed and returned the leave request form to complainant
in acknowledgment that the leave had been requested, the supervisor
no longer had a leave request form to return to complainant. In her
affidavit, complainant's supervisor went on to state that the approved
leave schedule was posted on September 16, 1998 while complainant was
at work, thus enabling complainant to observe that her leave request
for September 21 - 23, 1998 had been approved.<1>
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
______10-31-01____________
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 We note that the agency should have dismissed this claim pursuant to
29 C.F.R. �� 1614.107(a)(1), since complainant failed to show how she
was aggrieved by the actions of the agency. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).