01A42382
06-10-2004
Patricia L. Whidbee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Patricia L. Whidbee v. United States Postal Service
01A42382
June 10, 2004
.
Patricia L. Whidbee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A42382
Agency Nos. 4G-770-0708-97 and 4G-770-0453-99
Hearing No. 330-A2-8139X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) consolidated complaints
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. See 29 C.F.R. � 1614.606. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final action.
The record reveals that complainant, a City Letter Carrier, PS-05, at the
agency's Sugarland, Texas and Stafford, Texas Post Offices, filed formal
EEO complaints on December 15, 1997, and August 25, 1999. In her December
15, 1997 complaint, complainant alleged that the agency discriminated
against her on the basis of race (Black) when, on August 21, 1997, she
was the only employee taken into the office after a disturbance on the
workroom floor.<1> In her August 25, 1999 complaint, complainant alleged
that the agency discriminated against her on the bases of race (Black),
sex (female), color (black), age (D.O.B. February 29, 1950) and reprisal
for prior EEO activity (for filing the August 21, 1997 complaint arising
under Title VII), when, on July 3, 1999, she was forced to resign.<2>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On January 7, 2004, the AJ issued an Order of Dismissal,
dismissing the complaints due to complainant's failure to appear at
the hearing. The agency's final action implemented the AJ's dismissal,
but also evaluated the complaints on their merits, assuming that the AJ
may have intended only to dismiss complainant's request for a hearing,
rather than her complaints in their entirety. It is from this final
agency action that complainant appeals.
The AJ dismissed the complaints for failure to cooperate because
complainant failed to appear for the hearing scheduled for December 16,
2003, and because she failed to provide an adequate explanation for
her failure to appear at the hearing, as requested in the AJ's Order to
Show Cause. In complainant's response, complainant's attorney apologized
for failing to appear at the hearing, stating that she was unaware that
a hearing had been scheduled. The AJ stated that on a prior occasion,
complainant's attorney also claimed to have not received an Order of
the Commission, and noted that the AJ sent the hearing notice to the
attorney's proper address. He also noted that the hearing had already
been re-scheduled on several occasions due to complainant's attorney's
heavy litigation docket. The agency's final action implemented the
AJ's decision, noting further that complainant also did not respond to
two agency requests to provide an affidavit regarding the August 25,
1999 complaint.
On appeal, complainant argues that her hearing request should be
reinstated. She contends that the hearing had to be rescheduled on
several occasions due to both the requests of complainant's attorney,
and requests of the agency's attorney. She reiterates that she never
received the hearing notice for December 16, 2003. She also contends
that the complaint should not have been dismissed by the agency on
�summary judgment� because genuine issues of material fact exist.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of
a complaint where the agency has provided the complainant with a written
request to provide information or otherwise proceed with the complaint,
and the complainant has failed to respond to the request within 15
days of its receipt or the complainant's response does not address the
agency's request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
Although we find that the AJ properly acted within his discretion in
opting not to hold the hearing requested by complainant, as the hearing
had been postponed on numerous occasions and complainant failed to provide
adequate justification for her failure to appear at the hearing, the
record in this case is fully developed and contains sufficient evidence
for the agency to render a decision on the merits of the complaints,
on which the agency found no discrimination.
On appeal, complainant suggests that the agency rendered a decision
on �summary judgment.� By dismissing the complaint for failure to
appear at the hearing, pursuant to 29 C.F.R. � 1614.109(b), the AJ has
effectively rendered the hearing request withdrawn. The agency took final
action on this matter, making findings on the merits of the complaints.
The standards applied by the agency were as if complainant requested an
immediate final decision from the agency, rather than as if a decision
had been issued without a hearing by the AJ. See 29 C.F.R. �� 1614.109,
1614.110.
Assuming arguendo that complainant established a prima facie case of
discrimination in this disparate treatment case, we move to the question
of whether the agency articulated a legitimate, non-discriminatory reason
for its actions. After management was informed by an agency employee that
complainant and another employee were involved in a verbal confrontation
in which complainant was the aggressor, management separated the disputing
participants in order to interview all involved. Moreover, complainant
was not the only individual taken to the office. Furthermore, the agency
contends that complainant voluntarily resigned from the agency. According
to the agency, the evidence shows that complainant requested a transfer to
the Stafford, Texas Post Office on August 6, 1998, and that her request
was approved. Complainant was transferred to Stafford effective August
29, 1998. Complainant's resignation was dated June 16, 1999, and became
effective on July 2, 1999. Complainant had not worked for the management
officials that she claimed were responsible for the alleged harassment
that led to her resignation for about a year prior to her resignation,
and provided no specific information regarding the alleged harassment.
We find that the agency has articulated legitimate non-discriminatory
reasons for its actions. We further find that complainant has failed
to establish, by a preponderance of the evidence, that the agency's
explanation was a pretext for unlawful discrimination or retaliation.
Complainant also did not show that the agency's actions were motivated
by discriminatory or retaliatory animus on the bases of race, color,
sex or age. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the agency's final action.
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
June 10, 2004
__________________
Date
1The record does not contain a copy of the
December 15, 1997 complaint. The investigative report reveals that the
agency is missing the complaint.
2In her August 25, 1999 complaint, complainant mentions that she has filed
a class action. There is no mention of the class complaint on appeal.
We have contacted the agency, and were informed that complainant has
neither initiated EEO Counselor contact, nor filed a formal complaint
regarding a class action.