Mary A. Durham, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 11, 2002
01A04957 (E.E.O.C. Jul. 11, 2002)

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).