01991389
12-14-2001
Valarie A. Garza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Valarie A. Garza v. United States Postal Service
01991389
December 14, 2001
.
Valarie A. Garza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01991389
Agency No. 4G770072698
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. Complainant alleged that she was discriminated
against on the basis of reprisal for prior EEO activity (filing a prior
EEO complaint) when the postmaster (P1) followed her, accused her of
running a stop sign, and subsequently issued a seven-day suspension
because of her �unsatisfactory safety performance.�
During the relevant time, complainant was employed as a Letter Carrier
Technician at the agency's Orange, Texas facility. On June 13 and June
15, 1998, complainant did not go to work because she was ill. On June
16, 1998, she returned to work. While working her route, complainant
was pulled over by P1. He accused her of running a stop sign, which
complainant denies occurred. On June 29, 1998, complainant was issued
a notice of seven-day suspension. Complainant sought EEO counseling
and subsequently filed a formal complaint on August 14, 1998. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f), the
agency issued a final decision. The FAD, issued on November 5, 1998,
procedurally dismissed the complaint on the basis that no discipline
was taken against complainant and, as such, she was not �aggrieved.�
The agency subsequently rescinded that FAD on February 9, 1999, finding
that complainant was, in fact, suspended for seven (7) days.
In its new FAD, the agency concluded that complainant failed to establish
a prima facie case of reprisal in that she failed to demonstrate the
causal nexus between her prior EEO activity and the agency's action of
suspending her for seven days. Complainant makes no new contentions in
her instant appeal. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), and assuming
arguendo that complainant established a prima facie case of reprisal,
the agency has the burden of articulating a legitimate, nondiscriminatory
reason for its actions. The agency has met this burden by asserting that
complainant ran a stop sign, and that the the suspension was justified
in light of her previous violations and safety record, and the fact
that she showed no improvement after her prior disciplinary action.
In an attempt to prove pretext, complainant asserts that P1 was mad at
her because she had not come to work on June 13 and June 15, and she
implies that due to his �vendetta� against her, he fabricated this false
allegation. However, even if complainant had persuaded the Commission
that P1 fabricated the allegation that she failed to stop at a stop
sign, we note that her statement suggests that the real reason that
he took the action was his anger at her for failing to come to work,
and not reprisal for her prior EEO activity. The Commission thus finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons were a pretext to mask retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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 14, 2001
__________________
Date