01990915
12-08-2000
Yvonne D. Nelson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Yvonne D. Nelson v. United States Postal Service
01990915
December 8, 2000
.
Yvonne D. Nelson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01990915
Agency No. 4H370009597
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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that she was discriminated against on the bases
of race (African American), sex (female), reprisal (prior protected
activity) and disability (dog bites resulting in injury to right leg,
post traumatic stress and depression) when on December 12, 1996, she
was issued a notice of removal.
The record reveals that during the relevant time, complainant was employed
as a Carrier Technician, PS-6, at the agency's Highland Station facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 23, 1997.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) 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, the agency issued a final decision. In its FAD, the
agency concluded that complainant failed to satisfy the burden of proving
by a preponderance of the evidence that she was discriminated against
as referenced above. It is from this FAD, that complainant now appeals.
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether complainant has established
a prima facie case to whether she has demonstrated by preponderance of
the evidence that the agency's reasons for its actions merely were a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Accordingly, without addressing whether complainant was an individual
with a disability or otherwise established a prima facie case of
discrimination on any basis, we find that the agency has articulated
a legitimate nondiscriminatory reason for issuing complainant a notice
of termination; namely, that she made threatening statements to another
employee. The record reveals that on June 18, 1996, complainant angrily
threatened to �shoot up the place if they didn't leave [her] the f---
alone.� Later that day, complainant was overheard saying that �[she]
could understand how [postal] employees who had guns would try to use
them, because if [she] had one [she] might would hurt someone.�
The agency submits uncontroverted evidence of its �zero tolerance�
policy and that four employees who made confirmed verbal threats
were also issued notices of termination, and thereafter terminated.
(Report of Investigation p.6). Complainant fails to proffer any
evidence which would establish that the agency's reason is a pretext
for discrimination. Complainant merely states that she was singled out.
In the related case of Nelson v. United States Postal Service, EEOC
Petition No. 01993683 (__________, 2000), we affirmed the factual
findings of an EEOC Administrative Judge who, after a hearing on
the merits of another complaint filed by complainant, concluded that
complainant made the threats at issue. We take judicial notice of this
finding of fact. Moreover, we conclude that complainant failed to meet
her burden of establishing that the agency's issuance of the notice of
removal pursuant to its zero tolerance policy is a pretext for race,
sex or disability discrimination or 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 (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if 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 8, 2000
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.