01995363
02-14-2002
Martha J. Dizard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martha J. Dizard v. United States Postal Service
01995363
February 14, 2002
.
Martha J. Dizard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995363
Agency No. 1C-441-0189-98
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 Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (African American), sex (female), age (DOB:
05/20/40), disability (Heart Disease, Diabetes, High Blood Pressure &
Fibromyalgia) and retaliated against for prior EEO activity under Title
VII when on July 4, 1998, she reported for overtime and thereafter was
sent home after working for only ten minutes.
The record reveals that during the relevant time, complainant was
employed as a Training Technician at the agency's Cleveland, Ohio
facility. The record reflects that complainant reported to work on
July 4, 1998, in order to work overtime. Shortly after she arrived
the Acting Manager Distribution Operations (MDO) was paged and when he
arrived he told complainant to clock out because she was not scheduled
to work overtime. Complainant contends that she had gotten permission
to work overtime on July 1, 1998, from her supervisor.<1> Believing
she was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on September 9, 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. 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 failed to establish
a prima facie case of race, sex, and/or age discrimination. The FAD
found that complainant failed to show that similarly situated employees
outside of her protected groups were treated more favorably. The FAD also
indicated that complainant had failed to provide any evidence that but
for her age, she would not have been subjected to the action at issue.
The FAD concluded that complainant failed to establish a prima facie
case of retaliation because she failed to show that the agency official
who made the decision to have her clock out and go home on July 4, 1998,
had knowledge of her prior EEO activity. With respect to complainant's
allegation of disability discrimination, the FAD found that complainant
failed to establish a prima facie case because complainant had submitted
no evidence to substantiate her impairments. The FAD maintained that
complainant had no known restrictions and presented no evidence that
her impairments substantially limited one or more of her major life
activities. Additionally, the FAD found that the record is devoid of
any evidence that suggests that agency officials regarded or treated
complainant as having an impairment which substantially limited her
major life activities. Moreover, the FAD maintained that the agency
had articulated legitimate, nondiscriminatory reasons for its action,
namely, that complainant was told to clock out and go home on July 4,
1998, because she was not scheduled to work that day. Finally, the FAD
found that complainant had failed to show that the agency's articulated
reasons were pretext for discrimination.
Complainant makes no new contentions on appeal.
We note that 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). For complainant to prevail, he 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. U.S. Postal
Service Board 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 Services,
EEOC Request No. 05900467 (June 8, 1990); and Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo, that complainant established a prima facie case
on all bases, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its action, namely, that complainant was
told to clock out because she was not scheduled to work overtime that day.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
We find that complainant has failed to do so. Complainant has provided
no evidence that she was treated differently than similarly situated
employees or that the MDO was aware of her prior EEO activity. We find
that there is no evidence in the record that shows that complainant's
prior EEO activity, race, sex, age or disability were considered or
that the agency's articulated reasons for its actions were a pretext
for discrimination.
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
February 14, 2002
__________________
Date
1 Complainant's supervisor maintains that she did not have the authority
to authorize overtime on the Primary unit.