01972000
02-22-1999
Mary Jordan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Mary Jordan v. United States Postal Service
01972000
February 22, 1999
Mary Jordan, )
Appellant, )
)
v. ) Appeal No. 01972000
) Agency No. 4F-907-1102-95
William J. Henderson, ) EEOC No. 340-95-3986X
Postmaster General, )
United States Postal Service )
(Pacific/Western Areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination based on
race (African-American), sex (female), and reprisal (prior EEO activity),
when she was placed on an emergency suspension and subsequently issued
a fourteen (14) calendar day suspension, effective February 6, 1995.
Following the agency's investigation, appellant requested a hearing before
an EEOC administrative judge. Finding that there were no material facts
in dispute, on September 27, 1996, the AJ issued a Recommended Decision
pursuant to 29 C.F.R. � 1614.109(e)(3), finding no discrimination.
The record reveals that appellant was placed on emergency suspension
and later issued a fourteen (14) day suspension for unsatisfactory work
performance, i.e., failure to follow instructions, insubordinate conduct,
conduct unbecoming a postal employee, and for being AWOL. In his
decision, the AJ found that appellant had failed to establish a prima
facie case of discrimination on the bases of race or sex. Specifically,
appellant failed to identify a similarly situated employee, not in her
protected classes, who engaged in similar conduct but was not disciplined.
Assuming, arguendo, that appellant established a prima facie case, the AJ
found that the record established that appellant had a series of lesser
disciplinary actions such that the emergency suspension and fourteen
day suspension were supported as progressive discipline. Furthermore,
although the AJ found that appellant had established a prima facie case
of discrimination based on reprisal, she failed to demonstrate that the
discipline was imposed because of her prior EEO activity, as opposed
to her insubordinate conduct. In sum, the AJ found that appellant had
failed to prove, by a preponderance of the evidence, that the agency's
reasons for its actions were pretext for prohibited discrimination.
On November 29, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
As appellant's complaint constitutes a claim of disparate treatment, the
agency properly analyzed it under the three-tiered analytical framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976). Applying this legal
standard to appellant's complaint, the Commission finds that the agency
successfully rebutted any initial inference of discrimination raised
by appellant by articulating a legitimate nondiscriminatory reason for
the actions at issue. Specifically, appellant was issued an emergency
suspension and subsequently placed on a fourteen day suspension when she
called her supervisor a "bitch" and when she was charged with sixteen
hours of AWOL.
After a careful review of the record, the Commission finds that appellant
failed to establish that the agency's reasons for its actions were pretext
for discrimination. We find that appellant's contentions on appeal are
without merit. Specifically, appellant failed to present sufficient
evidence that there was a material issue in dispute. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final decision that it did not discriminate against appellant,
as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 22, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations