01982791
03-03-2000
Maureen Buzzell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Maureen Buzzell v. United States Postal Service
01982791
March 3, 2000
Maureen Buzzell, )
Complainant, )
)
v. ) Appeal No. 01982791
) Agency No. 4A-105-1058-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint 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.<1> The final agency decision was received by
complainant on February 12, 1998. The appeal was postmarked February
24, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified as 29 C.F.R. �1614.402(a)), and is accepted
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
Complainant contacted an EEO counselor on February 2, 1996, regarding
claims of discrimination. Specifically, complainant alleged that she
was discriminated against when:
(1) In August and September 1995, she was required to adhere to
regulations regarding lunches;
(2) On September 26, 1995, she was required to reimburse the Postal
Service for her personal telephone calls;
(3) On October 3, 1995, open craft positions were sent to the general
clerk for posting instead of being given to a supervisor to post;
(4) On December 11, 1995, she was the only supervisor who had an
erratic schedule;
(5) On December 20, 1995, she was required to revise her schedule because
she was late for work, instead of being granted approved leave.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on May 6, 1996, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of sex (female) and color (white).
The agency accepted complainant's complaint for investigation. Following
the completion of the investigation, the agency informed complainant by
letter dated October 8, 1997, of her right to request a hearing before
an Administrative Judge. The record contains no evidence reflecting
that complainant requested a hearing.
In its February 11, 1998, final decision, the agency first dismissed
the complaint as moot, and then made an alternative finding on the
merits. Specifically, the agency determined that any effects of the
alleged discrimination had been eradicated because complainant had been
reassigned to another postal facility. The agency also determined that
complainant failed to provide any objective evidence to support her
claim for compensatory damages. In the alternative, the agency found
no discrimination. The agency found that complainant's complaint claims
failed to establish by preponderant evidence that the agency engaged in
unlawful employment discrimination based on sex and race.
In her statement on appeal, complainant addressed both the agency's
finding of mootness and its finding of no discrimination. Concerning the
agency's determination that her complaint was moot, complainant averred
that she had suffered severe emotional and physical damage as a result
of the discriminatory conduct of the agency. Complainant presented
objective evidence in the form of personal statements regarding her
physical condition and statements from her treating physician. Upon
review, we find that the documents presented by complainant constitute
objective evidence of compensatory damages sufficient to preclude the
agency's finding of mootness pursuant to Volume 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(5)) provides for
the dismissal of a complaint when the issues raised therein are moot.
Because we find that complainant's complaint was not moot, the Commission
will consider the agency's finding of no discrimination.
Complainant's complaint constitutes a claim of disparate treatment,
and the agency properly analyzed it under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 7,92
(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Applying this legal standard to complainant's complaint, the Commission
finds that the agency successfully rebutted any initial inference of
discrimination raised by complainant by articulating a legitimate,
nondiscriminatory reason for the actions at issue. Specifically the
agency indicated that the lunch policy challenged in claim (1) of
complainant's complaint applied to all employees, including supervisors,
and including complainant.
Concerning claim (2), the agency stated that complainant was asked to
reimburse the agency for her personal phone calls because they were
excessive in nature. The agency maintains that complainant's telephone
use was abusive and that no other employee's use of the telephone equated
that of complainant's telephone usage.
In response to claim (3), the agency indicated that on the day in
question, the Officer-in-Charge (OIC) wanted the vacancy announcement
posted by 9:00 a.m. The agency further indicated that because
complainant was not at work by that time, the OIC instructed a general
clerk to post the vacancy.
Concerning complainant's erratic work schedule, claim (4), the agency
indicated that the creation of a new Window Technician position
freed complainant from having to supervise the window clerks; and
that complainant's OIC indicated that she was attempting to provide
complainant with an opportunity to develop supervisory skills in delivery
and collection.
Finally, in response to claim (5) regarding complainant's revised schedule,
the agency maintains that the decision to revise complainant's schedule,
rather than grant approved leave, was discretionary in nature and was not
based on complainant's race or sex. Regarding this matter, the record
contains the affidavit of an agency supervisor. Therein, she indicated
that on December 20, 1995, she revised complainant's work schedule
when she reported late for work, purportedly due to snow; that she was
scheduled to report for work at 5:00 a.m. but did not do so until 9:30
a.m.; and that complainant's schedule was therefore revised in accordance
with provisions of the agency Handbook addressing time and attendance.<2>
After a careful review of the record, the Commission finds that
complainant failed to establish that the agency's reasons for its actions
were pretext for discrimination. We find that complainant's contentions
on appeal are without merit.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
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
64 Fed. Reg. 37,644 37, 659 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,
644, 37,661 (1999)(to be codified at and hereinafter referred to as 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 (S1199)
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:
March 3, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ _____________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The supervisor indicated that the handbook dictates that "If the
employee's tour is extended solely because of tardiness, the employee is
not entitled to out-of-schedule overtime or Sunday premium which would
otherwise result because of the tour extension."