01A23388_r
09-18-2002
Wilma Vaughn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilma Vaughn v. United States Postal Service
01A23388
September 18, 2002
.
Wilma Vaughn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23388
Agency No. 4D-270-0092-01
DECISION
Complainant timely initiated an appeal from a May 24, 2002 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.
Complainant claimed that she was discriminated against in reprisal for
prior protected activity when: on May 24, 2001, she was issued a Letter
of Warning for unacceptable performance; and on September 4, 2001,
she was forced to leave work because she lost the use of her right arm
and the Postmaster wanted her to sign a leave slip saying she was AWOL.
The record reveals that during the relevant time, complainant was
employed as a Rural Carrier at the agency's Franklinton postal facility,
Franklinton, North Carolina. Believing that she was the victim of
discrimination in reprisal for prior EEO activity, complainant sought
counseling and subsequently filed a formal complaint on June 18, 2001.
The record further reveals that on July 23, 2001, the agency dismissed a
separate claim in the instant complaint, relating to the agency conducting
an investigative interview with complainant for falsification of her time
records. The agency dismissed this matter for failure to state a claim.
At the conclusion of the investigation for the accepted claims,
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.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination on the basis of reprisal. Further,
the agency found that complainant failed to present any evidence which
demonstrated that the agency's articulated reasons for its actions were
pretexts for discrimination.
Initially, we find that the agency properly dismissed the claim
regarding the investigative interview for failure to state a claim.
The Commission determines that complainant has not suffered a present
harm or loss regarding a term, condition or privilege of employment
relating to this matter. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The 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 agency determined that
complainant was issued two Letters of Warning on May 24, 2001, for
unsatisfactory performance. The agency also found that complainant was
not forced to leave work on September 4, 2001. The record in this case
contains two affidavits from the Postmaster. Therein, the Postmaster
stated that complainant was issued a Letter of Warning for failing to
accurately record her begin tour time on five separate occasions. The
Postmaster also stated that according to Section 510 of the ELM, postal
employees are required to "obtain approval of form 3971 before taking
leave-except in emergencies." The Postmaster stated that complainant
left work on her own on September 4, 2001, prior to his arrival and that
she was not forced to leave work. Complainant has not demonstrated that
the agency's articulated reasons for the Letter of Warning and charging
her AWOL on September 4, 2001, were a pretext for discrimination.
Moreover, we note that, on appeal, complainant appears to raise new
claims of harassment and retaliation discrimination. Complainant is
advised to contact an EEO Counselor if she wishes to further pursue
these matters through the EEO complaint process.
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
September 18, 2002
__________________
Date