01980440
06-01-2000
Susan C. Turner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Susan C. Turner v. United States Postal Service
01980440
June 1, 2000
Susan C. Turner, )
Complainant, )
) Appeal No. 01980440
v. ) Agency No. 1F-901-0093-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Caucasian), national origin (Canada), color (white), and
reprisal (prior EEO activity), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges she was discriminated against when: (1) on October 30, 1996,
she was threatened by a co-worker and management was not helpful; and (2)
on November 26, 1996, she was moved off her bid assignment in retaliation
for bringing (1) above to the attention of management and for her prior
EEO activity. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk, PS-5, at the agency's Los Angeles, CA,
Processing and Distribution Center facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on February 10, 1997, wherein she alleged that she had
been discriminated against as described above. At the conclusion of
the investigation, complainant did not request a hearing; therefore,
the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of discrimination on any basis because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. In this regard,
the agency found that there was no evidence that complainant had been
threatened or that she was taken off her bid assignment in retaliation
for bringing the alleged threat to management's attention. Rather,
investigation disclosed that complainant worked in the Certified Mail unit
as volume dictated and that when the mail volume was light, she worked in
the Mailing Primary section. The agency further found that complainant
failed to establish that its articulated, legitimate reasons for its
actions were pretextual. Complainant makes no contentions on appeal.
The agency requests that we affirm its FAD.
The Commission notes that the record does not clearly establish the
date of complainant's prior EEO activity. However, after a careful
review of the record, based on McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), and
assuming that complainant established a prima facie case of retaliation,
the Commission finds that complainant failed to meet her ultimate burden
of proof. The agency articulated a legitimate, nondiscriminatory reason
for removing her from the Certified Mail Unit, i.e., that the mail
volume was too light to give her work (her co-worker having seniority
to do what work there was) and the record reflects that complainant's
regular bid assignment was to work in the Certified Mail Unit only as
volume necessitated, and that the rest of the time she was to work in the
Mailing Primary Section. We further note that the record is devoid of
any evidence that the alleged threat was actually made and was motivated
by a discriminatory animus, or that its investigation differed in any way
from that given to similarly situated individuals not in complainant's
protected groups such that discrimination could be inferred.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
June 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.