01a45455
11-15-2004
Sherry A. Clowers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sherry A. Clowers v. United States Postal Service
01A45455
November 15, 2004
.
Sherry A. Clowers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45455
Agency No. 4H-370-0188-03
Hearing No. 250-2004-00158X
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.
During the relevant time, complainant was employed as a Distribution
Window Clerk, at the agency's Clinton Post Office in Clinton, Tennessee.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 17, 2003, alleging that she was discriminated
against on the basis of sex (female) when:
on June 3, 2003, she was denied a transfer to the custodial craft at
the Oak Ridge, Tennessee Post Office.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
timely requested a hearing before an AJ; however, she subsequently
withdrew her hearing request in favor of the agency issuing a final
decision.
In its FAD, the agency concluded that management articulated legitimate,
nondiscriminatory reasons for its actions and complainant failed to show
that these reasons were a pretext. Specifically, the agency presented
evidence reflecting that complainant's transfer request was denied
because the Oak Ridge Postmaster granted the request of one of his own
Oak Ridge employees to become the Custodian at the Oak Ridge Post Office.
Moreover, the agency found that complainant failed to present any evidence
which demonstrated that the agency's articulated reasons for its actions
were a pretext for discrimination.
A claim of disparate treatment is examined under the three-part 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 case 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).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The record reflects that
complainant's transfer request was denied because the Oak Ridge Postmaster
granted the request of one of his employees to become the Custodian at
the Oak Ridge Post Office. The record in this case contains an affidavit
from the Oak Ridge Postmaster (Postmaster). Therein, the Postmaster
stated that he had "no responsibility to the employees of the Clinton
Post Office," including complainant because the Clinton employees do not
work for him. The Postmaster further stated that he had an Associate
Supervisor Program (ASP) graduate working as a Supervisor at the Oak Ridge
Post Office; and that "for various reasons, this ASP graduate requested
and was granted the opportunity to take a downgrade and become the
Custodian at Oak Ridge." The Postmaster further stated that he made no
promises to complainant or to two other employees who were turned down
for the position. The Postmaster stated that the other two employees
"not accepted were already custodians, more qualified than [Complainant]."
Furthermore, the Postmaster stated "there is no contractual provisions
that requires me to accept employees outside of my installation."
Finally, the Commission determines that complainant has not demonstrated
that the agency's articulated reasons for its actions were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
November 15, 2004
__________________
Date