Barbara Popovich, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01986240 (E.E.O.C. Apr. 26, 2000)

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.