01A04957
07-11-2002
Mary A. Durham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Durham v. United States Postal Service
01A04957
July 11, 2002
.
Mary A. Durham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04957
Agency No. 4F-920-0019-00
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Customer Service at the agency's Post Office in Chula
Vista, California. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 12, 1999, alleging that she was
discriminated against on the bases of race (Caucasian), sex (female),
age (D.O.B: February 14, 1947), and reprisal for prior EEO activity<1>
when she was issued a Notice of Proposed Removal (Notice) dated October
6, 1999, forced to resign on October 26, 1999, and issued a letter of
decision regarding the removal dated November 3, 1999.
At the conclusion of the investigation, the agency issued its FAD
finding that complainant failed to establish her claim of discrimination.
Complainant appealed the FAD without comment. The agency requests that
we affirm its FAD.<2>
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, 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. U.S. Postal
Service 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Postmaster averred
that complainant was issued a Notice of Removal for failure to follow
instructions and had been absent from the workplace since June 1998.
The record indicates that complainant failed to provided updated medical
documentation for her continued absence since January 27, 1999. Based on
her conduct and her prior record, the agency issued her the Notice.
Rather than responding to the Notice, complainant faxed the agency
her resignation effective October 26, 1999. Following complainant's
resignation, the Manager of Post Office Operations issued the agency's
Letter of Decision regarding the removal action. The Manager indicated
that because complainant resigned, the removal action was moot.
Finding that the agency met its burden, we turn to complainant to
demonstrate that the agency's reasons were pretext to mask unlawful
discrimination. The Commission finds that complainant failed to show
that the agency's actions were based on her race, sex, age, and/or
prior EEO activity. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
July 11, 2002
__________________
Date
1The record indicates that complainant filed a previous EEO complaint,
however there is no information as to which statute she alleged was
violated.
2 We note that the agency's final decision provided appeal rights to
the Merit Systems Protection Board (MSPB). Since complainant filed her
appeal with the Commission, we shall assume jurisdiction over her case.
The complainant's complaint is firmly enmeshed in the EEO forum, and
it would better serve the interests of judicial economy to address
her complaint at this time rather than remand it for consideration to
the MSPB process. See Burton v. Department of Agriculture, EEOC Appeal
No. 01932449 (October 28, 1994).