01a51842_r
01-06-2006
Andrea Hawkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andrea Hawkins v. United States Postal Service
01A51842
January 6, 2006
.
Andrea Hawkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51842
Agency No. 1J-603-0029-04
DECISION
Complainant, a Part-Time Flexible Mail Processing Clerk, filed an EEO
complaint in which she claimed that the agency discriminated against
her on the bases of her race (African-American) and sex (female), when
she was denied a detail to Tour Two.
The complaint was accepted for investigation. Subsequent to
the completion of the agency investigation, the agency notified
complainant of her right to request either a hearing and decision
by an EEOC Administrative Judge or an immediate final action by
the agency. Complainant did not make a request for either option.
The agency therefore issued a final action dated November 24, 2004,
finding that no discrimination occurred. The agency determined that
complainant failed to set forth a prima facie case of discrimination.
The agency noted that complainant identified a Caucasian female who was
allowed to work in a detail assignment for over two years. The agency
determined, however, that this employee was not similarly situated to
complainant as this employee is a Full-Time Mail Processing Clerk who
was detailed to a supervisory position and was not working as a Mail
Processing Clerk on the workroom floor. The agency determined that
it articulated legitimate, nondiscriminatory reasons for its denial of
complainant's request for a detail to Tour Two. According to the agency,
complainant, as a Part-Time Flexible Mail Processing Clerk, does not
have a permanent assignment and her services were needed on Tour One.
The Manager, Distribution Operations, stated that he had previously
approved several detail requests for complainant. The agency noted
that during the prior two years, seven other Tour One Mail Processors
were allowed to work in detail assignments to Tour Two and that six
of these individuals were Black females and one was a Black male.
The agency concluded that complainant was not discriminated against
as there is no evidence that management was untruthful or attempted to
cover up illegal discrimination.
On appeal, complainant contends that the Manager, Distribution Operations,
allowed two other Black female Part-Time Flexible Mail Processing Clerks
and a Caucasian Full-Time Mail Processing Clerk to work details on
Tour Two. Complainant disputes the Manager's position that she works a
set schedule. Complainant states that she is flexible and can be moved
from tour to tour at any time.
In response, the agency asserts that the instant appeal is untimely.
The agency states that complainant received the final action on November
26, 2004, and that the instant appeal was not filed until January 4,
2005, after the expiration of the 30-day filing period.
Initially, we shall address the agency's position that the instant
appeal is untimely. The appeal was received by the Commission on
January 4, 2005. Although the appeal was apparently filed by mail,
the record does not contain the envelope that enclosed the appeal.
Therefore, under the instant circumstances, we shall not dismiss the
instant appeal on the grounds of untimeliness.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he 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.
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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of discrimination on the bases of
race and sex. Next, we shall consider whether the agency articulated
a legitimate, nondiscriminatory reason for its action. In this case,
the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its action. Consequently, we will dispense
with an examination of whether complainant established a prima facie
case with respect to the above cited issues and review below, the reasons
articulated by the agency for its action as well as complainant's effort
to prove pretext.
The agency stated that complainant's request to stay on Tour Two was
denied because she is assigned to Tour One and that is where her services
are needed. According to the agency, complainant was previously allowed
to work temporary details on Tour Two for a total of eleven months so
as to accommodate her need for a babysitter. We find that the agency
articulated legitimate, nondiscriminatory reasons for its decision not
to allow complainant to remain on Tour Two.
We find that complainant has failed to refute the agency's stated reasons
for not allowing her to remain on a detail to Tour Two or permanently
reassign her to Tour Two. Complainant has not shown that her race
or sex were factors in the agency's decision. The record reveals that
during the two year period preceding complainant's request, seven other
Mail Processors from Tour One were allowed to work details on Tour Two.
Among these individuals were six Black females and one Black male.
Complainant claims that a White female Mail Processor was allowed to
work in a detail assignment on Tour Two for over two years. However,
the record indicates that this individual was detailed to a supervisory
position and therefore is not relevant in support of complainant's
position that discrimination occurred. We find that complainant has
not shown, by a preponderance of the evidence, that the agency's stated
reasons for returning her to Tour One were pretext intended to mask
discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
race or sex discrimination occurred.
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
January 6, 2006
__________________
Date