0120081895
08-26-2008
Miriam E. Burton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Miriam E. Burton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081895
Agency No. 6K-000-0006-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 11, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Facilities
Contract Specialist, EAS-18, at the agency's Eastern Facilities Service
Office in Greensboro, North Carolina.
On June 22, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against
her on the bases of disability (diabetes, high blood pressure and high
cholesterol), age (57), and in reprisal for prior EEO activity when:
(1) on March 13, 2007, she became aware that one of her high profile
projects had been reassigned to a younger employee;
(2) on March 23, 2007, she was denied her request for a stand-alone
printer;
(3) on June 5, 2007, she was informed that she would receive a training
overview rather than one-on-one training; and
(4) on June 6, 2007, she was taken from work to the hospital by ambulance
due to an anxiety attack, and she is still unable to work.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond. On February 11, 2008, the agency issued the instant final
decision.
In its February 11, 2008 final decision, the agency found that complainant
did not establish a prima facie case of disability, age and reprisal
discrimination.1 The agency further found that assuming, arguendo,
complainant established a prima facie case, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Complainant's supervisor (S1) stated that in regard to claim (1), he
assigned one of complainant's projects (Dulles FSS) to an identified
employee for training purposes. S1 stated that he did not consider
the Dulles FSS "a high profile project - it was just another project
that this office had to process." S1 stated that he had a discussion
with complainant on March 9 and 13, 2007 to address her concerns and
"I explained why the project was assigned to someone else - I reassigned
the Dulles project to her."
Regarding claim (2), S1 stated that he denied complainant's request for
a stand-alone printer because she "had several other printers available
very nearby and she did not print out as much as another individual."
The Manager (M1) stated that the employee identified by complainant
had a stand-alone printer because she "is responsible for all the work
orders and payments for a company we use called FKC. This year alone
she processed over 10,000 invoices. To do this she must print out the
invoice, the back up documentation and the work order." M1 stated that
all employees in the contracting unit were given the opportunity to do
the work orders and that the identified employee was "the only person
who volunteered. [Complainant] declined to do it." M1 stated that the
other employees "that are doing work similar to [Complainant] also share
printers and do not have a printer in the cubicle."
Regarding claim (3), S1 stated that he made a determination that
complainant would receive a training overview rather than an one-on-one
training because "it would make more efficient and better [sic] for the
office if all the Contract Specialists attended the training together."
S1 further stated that the training overview was "identical" to the
one-on-one training.
Regarding claim (4), M1 stated that on June 6, 2007, he was having a
private conversation with S1 in his office when complainant came in; he
told complainant that he was having a private conversation and that he
would be out in a minute, but complainant refused to leave. M1 stated
that complainant wanted him to postpone their meeting from 10:00 a.m. to
10:30 a.m. so her union representative could be present. M1 stated that
he told complainant that she did not need a representative there "because
this is not a big issue and I just wanted to clarify a few things and
we would not postpone the meeting." M1 stated that complainant asked
him if he was refusing to allow her to have a representative and "she
then said if she dropped dead of a heart attack on this job, my children
will know what to do." M1 stated that after he told complainant that he
would postponed the meeting until 10:30 a.m., complainant "stormed out
of the office. She then turned right around and said I am going home I
am sick. I said fine, take the rest of the day off." M1 stated that
complainant got "heated, aggravated and looking for a confrontation."
M1 stated "I did not raise my voice or 'do battle with her' because I was
suffering from a severe cold at the time, I was totally lethargic and not
even wanting to be at work." M1 stated that during the relevant time,
he was not aware that complainant was suffering from an anxiety attack.
M1 stated that he was later informed by his staff that complainant was
sick in the bathroom and "that she was going home sick and her daughter
was coming to pick her up."
S1 stated that he was meeting with M1 in his office when complainant came
in requesting that the meeting with him and the Manager be postponed
for 30 minutes until a representative could be present. S1 further
stated that complainant raised her voice while the Manager "did not -
I did not say anything." S1 stated that during the conversation with
complainant, he "did not observe any difficulties - did not think any
action was necessary."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See 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.
See 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. See U.S. Postal
Service Board 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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 26, 2008
Date
1 The Commission presumes, for purpose of analysis only and without so
finding, that complainant is an individual with a disability.
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0120081895
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081895