01986240
04-26-2000
Barbara Popovich, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Popovich v. United States Postal Service
01986240
April 26, 2000
Barbara Popovich, )
Complainant, )
) Appeal No. 01986240
v. ) Agency No. 4-I-530-1158-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
dated July 7, 1998, concerning her complaint of unlawful employment
discrimination on the basis of reprisal (prior EEO activity), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The complainant alleges she was discriminated
against when: (1) on August 2, 1994, she was removed from her Window
Clerk position and (2) on November 21, 1994, she was threatened with
discipline or discharge and intimidated by management officials.<2>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's final decision finding no discrimination
based on retaliation.
The record reveals that during the relevant time, the complainant was
employed as a Distribution Window Clerk, at the agency's Brookfield,
Wisconsin Post Office facility. The complainant alleged that her
supervisor (S1) set her up by issuing her stamps several days prior to
the date the stamps were to be sold. Allegedly a customer requested
the stamps and the complainant sold them, which S1 then used as a reason
for removing her from her window duties. The complainant also alleges
that S1 removed her from window duties because she was not good with
the public.
Believing she was a victim of discrimination, the complainant sought EEO
counseling and, subsequently, filed a complaint on December 27, 1994.
At the conclusion of the investigation, the complainant requested that
the agency issue a final agency decision.
The agency found that the complainant failed to establish a prima facie
case of retaliation discrimination because she presented no evidence
to show a causal connection between her previous EEO activity and
being removed from her Window Clerk position or allegedly threatened
with discipline. However, the agency further found that even if the
complainant had shown a prima facie case, the agency had articulated
legitimate nondiscriminatory reasons for its action. The record contains
an affidavit from the Postmaster (PM) stating that the complainant
was removed from Window Clerk duties because of her poor performance.
Specifically, the PM stated that the complainant had failed her first
window training, was rude and objected to the trainer to whom she was
assigned and that when her inefficiencies started involving customers,
something had to be done. The record contains a memorandum dated August
3, 1994, by the PM which shows that several of the complainant's coworkers
went to the PM because they were concerned about the incorrect information
that the complainant was providing to customers and length of time she
was spending on each transaction. The PM stated further that based on
the conversation with coworkers, past knowledge of the complainant and
conversations with S1, the PM decided to no longer use the complainant
on the window.<3>
In a response affidavit, the complainant states that after she was
reinstated with craft seniority restored as of April 8, 1989, she was
threatened and punished for "petty mistakes far more severely than other
window clerks." The complainant also asserted that her coworkers were
friends of S1 and PM, who used them to observe or "witness against" her.
She further asserted that the trainer was a friend of S1 and that she
requested another trainer because she knew she could not get "fair and
equal treatment," but that request was denied. In its decision, the
agency found that she failed to show that management's reasons were a
pretext for discrimination.
On appeal, the complainant contends that the agency failed to consider
her reinstatement which was received as a result of agency EEO complaint
No. 4-J-000-0093-89, in which S1 had separated her from the Postal
Service during her probation. Therefore, the complainant argues, S1
was humiliated and embarrassed by the reinstatement and was clearly
motivated to retaliate against her. Further, the complainant alleged
that the agency's assertion that the complainant failed her Window Clerk
test was pretext because when she was rated by a unbiased trainer she
received an overall "satisfactory" rating. The record shows that the
complainant did pass the Window Clerk test, eight months later time with
a different trainer. The agency requests that we affirm its findings
of no discrimination.
With regard to reprisal discrimination, the Commission has set forth
the criteria for reprisal cases, as follows:
To establish a prima facie case of reprisal discrimination, the
complainant must show that (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity; (3)
she was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link . . . The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). "Generally, the Commission has held that
nexus may be established if events occurred within one year of each
other." Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
We find that the complainant meets the first three reprisal criteria but
fails to show how her prior EEO activity is related to her being removed
from the Window Clerk position or allegedly threatened with discipline
or removal. The record shows that the complainant has engaged in previous
EEO activity and that S1 and the PM were aware of it. The record also
shows that the complainant was removed from her Window Clerk duties.
The record shows that the complainant�s last EEO activity was in April
1993.
Assuming arguendo that the complainant made a prima facie case
of retaliation, and after a careful review of the record, based on
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission finds that the 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 that the complainant does not
assert that her performance was adequate in the Window Clerk position.
To the contrary, she even admitted in her affidavit that she was still
making mistakes.
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
finding of no discrimination.
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:
04-26-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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.
2 We note that the complainant does not challenge the agency's findings
with regard to the second claim. Therefore, the Commission does not
address that finding.
3 The record indicates that S1 retired on June 29, 1997, prior to the
October 29, 1997 request for an affidavit from the Milwaukee District's
EEO office.