01982111
06-17-1999
Romaine T. Worster, Appellant, v. William J. Henderson, General, United States Postal Service, Agency.
Romaine T. Worster v. United States Postal Service
01982111
June 17, 1999
Romaine T. Worster, )
Appellant, )
)
v. ) Appeal No. 01982111
) Agency No. 4D-270-1029-95
William J. Henderson, ) Hearing No. 140-95-8172X Postmaster
General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency (FAD)
concerning her allegation that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001, as
amended. For the reasons set forth below, we differ with the conclusions
of the EEOC Administrative Judge, and AFFIRM the agency's finding of no
discrimination.
The issue presented is whether appellant proved, by a preponderance of the
evidence, that she was discriminated against because of her sex (female)
when on October 4, 1994, she was issued a Notice of Removal (NOR),
effective November 4, 1994, charging her with Improper Conduct/Threatening
Another Postal Employee.
Appellant, in August 1994, was a city carrier with more than 28 years
of agency experience. She was assigned to the Westside Station of the
agency's Greensboro, North Carolina Post Office. On August 3, 1994, B-1,
a co-worker and union steward, noticed the appellant was still working
at approximately 3:05 p.m. Since appellant's tour ended at 3:00 p.m.,
B-1 asked if she was working "off-the-clock." After B-1 told appellant
that she had to follow the rules like everyone else, appellant threw
a large batch of mail at B-1's face and told him that she did not have
to answer to him. As B-1 walked away, appellant followed him shouting
profanities. At one point, appellant stated "[d]on't . . . with me.
I know where you live and I'll . . . kill you."<1>
B-1 then went to Supervisor A-1's office to report appellant's actions.
Appellant followed him into the office screaming: "Yes, I said it, and
I mean it! I'll . . . kill you. I'm on Prozac<2>, and I'm unstable, and
I'll . . . kill you."<3> A-1 took appellant out of the office and tried
to calm her down. B-1 returned to his workstation. According to B-1,
appellant approached him a few minutes later challenging him to a fight
in the parking lot and threatening to kill him again.<4> Appellant also
told several co-workers that they should "[s]tick around" if they want to
see her beat B-1.<5> At approximately 3:30 p.m., the appellant drove off
and contacted an Employee Assistance Program Counselor. The counselor
suggested that appellant go to a local hospital for a needs assessment.
Although appellant stated that she did not want to do this, she complied
with the suggestion because she was told it would help her keep her job.
Appellant agreed to go to the hospital the next day, August 4, 1994.
Later on August 3, 1994, however, A-2, the Station Manager, and a
Postal Inspector visited the appellant at her home. A-2 gave her
a letter placing her in an emergency off-duty status (without pay),
effective August 4, 1994, for "allegedly engaging in improper conduct
toward a fellow employee ([B-1]) by repeatedly threatening to kill him."
The Postal Inspector interviewed appellant and prepared a Memorandum
of Interview. Appellant admitted threatening A-1 with bodily harm,
threatening to kill him and using foul language. Finally, appellant
told the Postal Inspector that she was taking Prozac, that she did not
own any guns, that she was not a violent person and that she had no
intention of actually carrying out her threats.
The next day, August 4, 1994, appellant went to a hospital for
an evaluation. She was hospitalized for ten (10) days, followed by
two weeks of partial hospitalization, all under the care of a doctor.
Subsequently, the doctor diagnosed appellant as having a non-specific
bipolar disorder, with passive aggressive personality traits.
On August 29, 1994, the doctor released appellant to return to work
without restrictions, effective September 5, 1994. Appellant, however,
did not return to work until September 21, 1994. At that time, she was
immediately issued another letter placing her in an emergency off-duty
status (without pay), effective September 22, 1994. On October 4, 1994,
A-2 issued appellant a Notice of Removal, effective November 4, 1994.
The Postmaster, A-3, was the deciding official.
Appellant filed grievances regarding being placed in an off-duty
status, on two occasions, without pay and on the matter of her removal.
A settlement was eventually reached with regard to her being placed in
an off-duty status, and appellant was paid for all of the off-duty time.
Appellant's removal, however, was upheld, and her grievance was denied
at step 3 of the process on March 2, 1995. On March 3, 1995, appellant
filed a formal EEO complaint concerning her removal.
The agency complied with all procedural and regulatory prerequisites, and
a hearing was held before an EEOC Administrative Judge (AJ). On August
14, 1997, the AJ issued a Recommended Decision (RD) finding that the
agency engaged in unlawful discrimination based on sex. Subsequently,
the agency, in its final decision, rejected the AJ's RD. According to the
agency, appellant failed to establish a prima facie case of discrimination
based on sex because she was not similarly situated with the comparative
employees she named. Furthermore, the agency found that even assuming,
arguendo, that appellant established a prima facie case, she did not
establish pretext.
Since this allegation constitutes a claim of disparate treatment, it must
be analyzed under the tripartite analysis enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Appellant has the initial burden
of establishing, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action;
and appellant must then prove, by a preponderance of the evidence, that
the legitimate reasons offered by the employer were not its true reasons,
but were a pretext for discrimination.
The above analytical model need not be adhered to in all cases.
In appropriate circumstances, when the agency has established a
legitimate, nondiscriminatory reason for its conduct, the trier of
fact may dispense with the prima facie inquiry and proceed to the
ultimate stage of the analysis, i.e., whether the complainant has shown
by preponderant evidence that the agency's explanations were a pretext
for actions motivated by prohibited discriminatory animus. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983). Therefore, in the present case, the Commission will bypass
the prima facie stage of the analysis and focus on whether the agency's
explanation for terminating appellant was a pretext for discrimination
based on sex. Management officials testified that appellant's conduct
was so severe and unacceptable, in repeatedly threatening the life of a
co-worker, that her removal was warranted. Appellant admitted that she
engaged in the conduct. The AJ, we note, also found that the agency
met its burden of articulating a legitimate, nondiscriminatory reason
for removing appellant.
Next, the Commission must determine whether appellant established,
by a preponderance of the evidence, that the reasons offered by the
agency were not its true reasons, but were a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256
(1981). As previously noted, the AJ determined that appellant had
established pretext. In reaching this decision, the AJ took note of
a Joint Statement on Violence and Behavior in the Workplace, between
management and the union. The statement indicated that the agency
had a duty and a responsibility to its employees and customers to
insure a safe work environment. As a part of its overall approach
in addressing work place violations, the AJ found that the agency
had committed itself to the proposition that it would not tolerate
harassment, intimidation, threats or bullying. According to the AJ,
the agency noted the environmental stressors which were operating in
the life of male employees who committed violent outbursts, but not
appellant's claim that she was being harassed by the union. Therefore,
the AJ found that appellant was treated disparately.
The AJ compared the treatment of appellant to the following individuals:
C-1, a Letter Carrier assigned to the Greensboro Westside Station,
was charged with having an altercation with a supervisor and failing
to obey a direct order in November and December 1987. C-1 was issued
a Notice of Removal, which was later reduced to a 14-day suspension.
C-2, a Letter Carrier assigned to the Greensboro Post Office, was
disciplined for being discourteous and/or disrespectful to a supervisor,
failing to follow instructions, insubordination, disruptive behavior
and for using loud, vulgar language. Letters of Warning were issued
to C-2 in July 1986 and September 1989. On December 28, 1989,
he was issued a Notice of Suspension for fourteen days for being
discourteous/disrespectful to a supervisor and failing to follow
instructions/insubordination. The suspension was either reduced or
rescinded in the grievance process. On June 26, 1990, C-2 was issued
a Notice of Removal for repeated threatening behavior and failure to
control his verbal assaults and temper. The removal was later rescinded
in the grievance process in September/October 1991.
C-3, a Mark-up Clerk assigned to the Greensboro Computerized Forwarding
System unit located at the Hilltop Station, allegedly threatened and
frightened employees in the work unit by expressing suicidal ideations.
On April 10, 1993, C-3 reportedly threatened to bring a gun to work
and hurt someone if he were not scheduled for Sunday overtime. C-3 was
scheduled for a fitness-for-duty exam and placed on administrative leave
pending an investigation. The investigation failed to substantiate the
alleged threat, and the examination found that C-3 was not a threat
to himself or others. C-3 was not disciplined, but was reassigned
permanently to a new location.
C-4, a Distribution and Window Clerk, assigned to the Friendly Finance
Station in Greensboro, allegedly assaulted another employee. On July
20, 1993, A-2 requested that C-4 undergo a psychological examination
because of the alleged assault and other behavior that C-4 attributed
to his medication. Pending the examination and investigation, C-4 was
placed on administrative leave. The investigation failed to substantiate
that the assault took place and no discipline was issued.
With respect to C-3, the AJ, among other things, found that the
agency, following consultation with the Postmaster, placed him on
administrative leave, not in an unpaid status, as was the case with
appellant. With respect to C-4, the AJ noted that, unlike appellant,
he was given a psychological fitness-for-duty examination and placed on
administrative leave. With respect to C-1 and C-3, the AJ found that
their conduct, although distant in time, was similar to appellant's.
Regarding C-2, the AJ found that although it was not clear that he
ever made a threat to kill, the evidence indicated that he did make a
threat.<6> Also, C-2 exhibited threatening, disruptive, abusive and
offensive behavior on a regular basis. Finally, the AJ noted that C-1
had to be physically restrained because it was felt that he would do
bodily harm to a supervisor and a customer.
Employers generally have broad discretion to set policies and carry
out personnel decisions, and should not be second-guessed by reviewing
authorities absent evidence of unlawful motivation. Burdine, 450 U.S. at
259. To that end, we find that appellant failed to demonstrate that the
agency's legitimate, nondiscriminatory reason for removing her, i.e., that
she engaged in improper conduct when she repeatedly threatened to harm
and/or kill B-1, was a pretext for discrimination. Appellant failed to
provide persuasive evidence that her sex played any role in the decision
that she be terminated. Like the agency, we find that appellant's actions
were not similar to C-1, C-2, C-3 or C-4. Appellant failed to establish
that these employees ever directed repeated death threats at a co-worker.
The fact that A-2 went to appellant's home and placed her in an off-duty
status, on the very evening of the incident, is indicative of management's
concern about her behavior. Finally, we note that C-2, like appellant,
was also removed for engaging in threatening behavior towards others,
albeit the removal was rescinded in the grievance process.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter and find that appellant failed to prove
that she was discriminated against because of her sex.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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:
June 17, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1See Agency Exhibit (AE) #2, pp.6-12.
2We note that appellant did not raise disability as a basis of
discrimination.
3Id.
4Id.
5Appellant, in large part, agreed with the above facts. She, however,
maintained that she reacted to what she consider to be ongoing harassment
and provocation by A-1. According to appellant, she was outspoken in
her opposition to the union; consequently, union officials would from
time to time take actions to harass her. A-2 indicated, however, that
many of these actions were in the nature of minor annoyances that did
not merit disciplinary actions.
6Appellant submitted information concerning the disciplinary history of
the comparative employees. We note, with regard to C-2, two entries.
They are: "7-6-88 - Insubordinate - Letter of Warning to be issued. [C-2]
threatened . . . saying 'if he goes down, he would have [another employee]
written up;'" and "[o]n 9-14-89, not working - Supervisor asked [C-2]
to RTW - [C-2 stated] 'you're [sic] a . . . liar, and the business
between us is not finished.'"