01A13759
08-19-2002
Mildred D. Kelley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeastern Area) Agency.
Mildred D. Kelley v. United States Postal Service
01A13759
August 19, 2002
.
Mildred D. Kelley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeastern Area)
Agency.
Appeal No. 01A13759
Agency No. 1H333102796
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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Automation Clerk at the agency's South Florida Processing
and Distribution Center facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on October 13, 1998, alleging that
she was discriminated against on the bases of race (African-American)
and reprisal for prior EEO activity when she was not selected for the
Associate Supervisor Program on May 20, 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 discrimination because she failed to show that
a similarly situated person not in her protected class who had a similar
record of attendance had been selected for the Associate Supervisor
Program. The agency further found that complainant failed to show that
her prior protected activity was causally related to her non-selection
for the Associate Supervisor Program.
On appeal, complainant contends that her supervisor's comments regarding
her attendance and work performance were minor infractions and should not
have been relied on in denying her selection for the supervisors' program.
She contends that the supervisor's reliance on incidents that were not
subject to disciplinary action should not have been recorded under the
parties' Collective Bargaining Agreement and as such should not have
been reflected on her record. The agency requests that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII
case alleging disparate treatment discrimination is a three-step
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
Complainant has the initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. If complainant meets
this burden, then the burden shifts to the agency to articulate some
legitimate, nondiscriminatory reason for its challenged action. Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 - 717
(1983).
Applying these principles, the Commission assumes for purposes of
our analysis, that complainant established a prima facie case of
race discrimination and reprisal. The Commission further finds that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant's
supervisor indicated he could not recommend complainant for the Associate
Supervisor Program because she had attendance problems for which she
had been counseled. Complainant asserted that past disciplinary actions
against her should have been expunged because of their age, but she failed
to address the more recent incidents of lateness and unscheduled absences.
Complainant's supervisor's notations on complainant's application for
the program indicated he relied on the more recent attendance problems
in not recommending her for the subject program, and not on the past
disciplinary actions. Thus, because complainant did not specifically
address the agency's reasons for not selecting her she failed to show
that they were a pretext for unlawful 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
August 19, 2002
__________________
Date