01A14248
03-14-2002
Barbara J. Wirtz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara J. Wirtz v. United States Postal Service
01A14248
03-14-02
.
Barbara J. Wirtz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14248
Agency Nos. 4F-926-0088-98 & 4F-926-0077-97
Hearing Nos. 340-98-3986X & 340-99-3731X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaints 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. (1994 & Supp. V
2000), and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. (1994 & Supp. V 2000). The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
EEOC Hearing No. 340-98-3986
The record reveals that on March 2, 1998, complainant, a Carrier
Technician, PS-6, at the agency's Glendora, California facility, filed
a formal complaint alleging discrimination based on retaliation when
she was issued a Notice of Removal on December 22, 1997, for Failure
to Follow Instructions/Operating a Vehicle in an Unsafe Manner.<1>
Complainant's supervisor (S-1) conducted an investigative interview of
the accident with complainant and her union representative. During the
interview complainant stated that she was in a hurry and that she
should have dismounted to complete the delivery. Complainant also
stated that there was nothing obstructing her view at the time of the
accident. The decision to remove complainant was made after S-1 and
the Postmaster (P-1) reviewed the facts from the investigative interview
and complainant's past safety record.<2> Complainant believed that the
prior discipline and instant Notice of Removal were issued in reprisal
for her 1995 signature on a co-worker's petition related to his EEO
complaint, and because she was called as a witness against the agency
for a co-worker's EEO complaint in 1998. Complainant asserts that there
were other employees who had been in accidents but had not received
any discipline. Complainant also alleges that P-1 had a history of
targeting particular employees who engage in EEO activities.<3> After
the agency's investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ) on June 23, 1998.
EEOC No. Hearing 340-98-3731
On February 4, 1999, complainant filed a formal complaint alleging
that she was discriminated against because of her race (Caucasian), sex
(Female), age (D.O.B. June 4, 1952), and reprisal for prior EEO activity
when on December 24, 1996, she was issued a fourteen-day suspension for
Failure to Follow Instruction-Failure to Secure the Mails/Failure of
Adhere to Safe Work Practices/Unacceptable Conduct/Use of Profanity.<4>
Complainant supervisor (S-2) conducted an investigative interview with
complainant and her union representative about complainant's failure
to properly secure the mail in her vehicle. During the interview,
complainant stated that she did not know of the requirement to properly
secure the outgoing mail in the rear of her vehicle. However, complainant
received a Letter of Warning for a similar infraction dated August 23,
1996, citing her for Failure to Secure Mail. At that time, she indicated
that she was aware of the requirement to store all first class mail in the
security compartment of the vehicle. The agency also offered evidence of
the discipline of eleven other employees during the same time period for
similar conduct. This group included male and female employees ranging in
age from 28 to 50 years old, with and without prior EEO activity, and from
three other racial groupings. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ) on June 1, 1999.
The AJ consolidated the complaints pursuant to 29 C.F.R. � 1614.606,
and issued a decision without a hearing, finding no discrimination.
In EEOC Hearing No. 340-98-3986, the AJ concluded that complainant
established a prima facie case of retaliation because complainant engaged
in EEO activity at the time she had the accident and received the Notice
of Removal. Further, the AJ found that since both her supervisor and
the Postmaster were aware of her prior EEO activity, complainant had
established a causal nexus between her EEO activity and the Notice of
Removal. The AJ then found that the agency articulated a legitimate,
non-retaliatory reason for the Notice of Removal. Specifically,
complainant had been disciplined five times in the past for her unsafe
work practices and therefore, the Notice of Removal was based on her
own admissions coupled with her past safety record, not her prior EEO
activity. The AJ concluded that complainant did not present sufficient
evidence that the agency's explanation was pretext for retaliation in that
the petition was signed in 1995 and the hearing was conducted after the
Notice of Removal was issued. Further, even though complainant stated
that other employees had accidents but were not disciplined, she failed
to offer any comparative evidence to the record, whereas, the agency
offered evidence of the removal of another employee for a similar issue.
In EEOC No. Hearing 340-98-3731, the AJ found that complainant failed to
establish a prima facie case of race, sex, or age discrimination because
complainant failed to provide any comparative evidence of disparate
treatment when she was suspended.<5> The AJ then found that complainant
had established a prima facie case of retaliation in that she signed
a petition involving a discrimination complaint of a co-worker that
circulated in 1995 and that management knew of her EEO activity. The AJ
concluded that it was reasonable to assume that a nexus existed between
complainant's EEO activity and Notice of Suspension, but noted that the
agency articulated a legitimate non-retaliatory reason for the Notice
of Suspension. Specifically, complainant had been disciplined twice
within the prior four months for the same conduct, and had previously
acknowledged that she was aware of the policy to secure first class mail.
Therefore, the AJ found that the Notice of Suspension was based on
complainant's own admissions coupled with her past discipline record,
not on complainant's prior EEO activity. The agency's final order
implemented the AJ's decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its final order.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race, age or sex. We discern
no basis to disturb the AJ's decision. 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 agency's final order.
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
____03-14-02______________
Date
1While performing curbside delivery on November 24, 1997, complainant's
postal truck hit a parked vehicle and dislodged the vehicle's front
bumper.
2 From August 1996 to October 1997, complainant disciplinary record
included two letters of warning for Failure to Follow Instruction-Failure
to Secure the Mails/Failure of Adhere to Safe Work Practices, and
suspensions for 3, 5, and 14 days respectively for similar violations.
The Notice of Removal at issue here was later reduced to a 15 day
suspension through the union grievance process.
3Complainant representative indicated that complainant might have been
singled out for discipline because she was friendly with him and he had
engaged in EEO activity.
4Complainant properly filed a request for counseling on January 3,
1997, which was inadvertently overlooked by the agency. Complainant's
representative inquired about the status of the complaint on March 18,
1998. The agency acknowledged its processing oversight in a letter dated
May 1, 1998. Complainant's representative requested a hearing on December
12, 1998. The agency issued complainant a Notice of Final Interview on
January 25, 1999. This complaint bears agency number 4F-926-0077-97.
5 The Commission notes however, that the AJ's analysis leading to the
finding that complainant failed to establish a prima facie of harassment
based on her race, sex or age because she did not show that she was
treated less favorably than similarly situated employees outside her
protected group was incorrect. Complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. See O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308 (1996); Enforcement Guidance on O'Connor
v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n. 4
(September 18, 1996). Nevertheless, applying the correct standards,
we concur with the AJ and agency's decision as complainant was unable
to show by a preponderance of the evidence that the agency's articulated
reason was pretextual.