01a03402
08-22-2000
Aslee Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Aslee Smith v. United States Postal Service
01A03402
August 22, 2000
.
Aslee Smith,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03402
Agency No. 1H-391-1037-95
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, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the bases of
race (Black), sex (female), and reprisal (prior EEO activity)<2> when
on March 22, 1995, she was publicly humiliated when her supervisor
(Supervisor) spoke to her in a loud, inhumane, unprofessional and
degrading manner.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's General Mail Facility in Jackson,
Mississippi. On March 22, 1995, complainant was about to take her
break when the Supervisor instructed her to perform a task. Complainant
averred that she informed the Supervisor that another manager told her
she could take her break. Complainant stated that the Supervisor then
yelled that she, not the manager, was complainant's supervisor, and
told complainant again to perform the task. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint. 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. Complainant requested a hearing before an AJ, and her file
was forwarded to EEOC Birmingham District Office, Birmingham, Alabama.
Prior to the hearing, complainant withdrew her request for a hearing
and requested that the agency issue a final decision.
In its FAD, the agency found no discrimination. The agency concluded
that complainant failed to establish a prima facie case of discrimination
based on race, sex and reprisal, noting that complainant failed to prove
disparate treatment or a discriminatory motive based on race, sex and/or
retaliation, and failed to show a causal connection between the action
alleged and her prior EEO activity. Complainant appealed.
ANALYSIS AND FINDINGS
Complainant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). In general, 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. McDonnell Douglas, 411 U.S. at 802.
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). If the agency
is successful, the burden reverts to the complainant to demonstrate by a
preponderance of the evidence that the agency's reasons were a pretext for
discrimination. At all times, complainant retains the burden of persuasion
and it is her obligation to show by a preponderance of the evidence
that the agency acted on the basis of a prohibited reason. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
The Commission agrees with the agency that complainant failed to
establish a prima facie case of discrimination based on race and sex.
In reaching this conclusion, we note a statement from the Postmaster, who
witnessed the incident. He averred that the Supervisor gave complainant
instructions in a normal voice, that complainant displayed disgust,
and that the Supervisor then raised her voice, but not to the point
of yelling, and continued giving instructions. A co-worker (Black,
female) averred that the Supervisor speaks in the same manner to all
of the employees. Complainant listed three male comparison employees
(one Caucasian, two Black) whom she claimed the Supervisor treated more
favorably. The Supervisor stated that these three employees were not
comparison employees because they were performing their duties whereas
complainant was not.
In order to establish a prima facie case of discrimination based on
reprisal, complainant must show: 1) that she engaged in protected
activity, e.g., participated in a Title VII proceeding; 2) that the
alleged discriminating official was aware of the protected activity; 3)
that she was disadvantaged by an action of the agency contemporaneously
with or subsequent to such participation; and 4) that there is a causal
connection between the protected activity and the adverse employment
action. Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass), affirmed, 545 F. 2d 222 (1st Cir. 1976);
see also Mitchell v. Baldridge, 759 F. 2d 80, 86 (D.C. Cir. 1985);
Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th
Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The record indicates that complainant engaged in protected activity when
she filed an EEO complainant on August 1, 1994, and that the Supervisor
was aware of that activity, being named in the complaint. The Commission
finds that a causal connection exists based on closeness in time between
complainant's prior EEO activity and the agency action complained of.
Therefore, complainant established a prima facie case of discrimination
based on reprisal.
The Commission finds, however, that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note the Postmaster's statement that the Supervisor was
dealing with an angry employee, and the co-worker's statement that the
Supervisor treated all of the employees the same way. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 22, 2000
_________________
DATE
_________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant filed an EEO complainant against the supervisor on August 1,
1994.