01a55417_r
12-20-2005
Tamara D. Hutton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tamara D. Hutton v. United States Postal Service
01A55417
December 20, 2005
.
Tamara D. Hutton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55417
Agency No. 1C-401-0066-04
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 Mail Processing
Clerk at the agency's Louisville Processing and Distribution Center in
Louisville, Kentucky. Complainant filed a formal complaint on July 27,
2004, claiming that she was discriminated against on the bases of sex
(female) and in reprisal for prior EEO activity when:
on June 10, 2004, management walked her out of the building.
At the conclusion of the investigation, complainant was informed of the
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a FAD by the agency. Complainant initially
requested a hearing before an AJ, but later withdrew that request and
requested that the agency issue a FAD.
In its August 8, 2005 FAD, the agency found no discrimination.
The agency found that complainant did not establish a prima facie case
of sex discrimination because she did not identify similarly situated
employees not in her protected class who were treated differently under
similar circumstances. Regarding the reprisal basis, the agency found
that complainant did not establish a prima facie case of reprisal
discrimination. Specifically, the agency found that complainant's
most recent prior protected was initiated in November 2003, and that
complainant did not initiate the instant case until July 2004, nearly
eight months later. The agency concluded that complainant did not show
a casual connection between her prior protected activity and the adverse
action described in the instant complaint.
Moreover, the agency found that it articulated a legitimate,
non-discriminatory reason for its actions by escorting complainant from
the agency facility after it determined that she used profanity on the
workroom floor. The agency determined that management had the right to
maintain a harmonious work place conducive to others being capable of
executing the agency's mission; and that complainant's actions detracted
both from that mission and from a professional work environment.
Finally, the agency found that its articulated reason was not 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, she 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).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reasons for its employment actions. The record
contains an affidavit from the Acting Supervisor Distribution Operations
(ASDO). Therein, ASDO stated that on June 10, 2004, complainant was
escorted from the facility "for insubordination toward a supervisor."
Specifically, ASDO stated that complainant used profanity on the
workroom floor. ASDO stated that he based his determination to have
complainant escorted from the facility in accordance with the 2000-2003
agreement between the agency and American Postal Workers Union-AFL/CIO,
as well as the Employee Management Manual. Furthermore, ASDO stated
that he was unaware of complainant's prior protected activity.
The record further contains an affidavit from the Supervisor Distribution
Operations (SDO). Therein, SDO stated that on June 10, 2004, ASDO asked
him to help escorting complainant from the facility. SDO further stated
that because complainant used profane language on the workroom floor,
ASDO asked complainant to clock out and leave the building but she refused
to follow his instructions. Furthermore, SDO stated that complainant's
conduct "was interrupting the workroom floor."
We find that complainant has not demonstrated that the agency's
articulated reasons for its actions, as discussed above, 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
December 20, 2005
__________________
Date