Betty A. Thompson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 30, 1998
01976439 (E.E.O.C. Oct. 30, 1998)

01976439

10-30-1998

Betty A. Thompson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Betty A. Thompson v. United States Postal Service

01976439

October 30, 1998

Betty A. Thompson, )

Appellant, )

) Appeal No. 01976439

v. ) Agency No. 4-I-640-1068-95

) Hearing No. 280-97-4014X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

her allegation that the agency violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted

by the Commission in accordance with the provisions of EEOC Order

No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

appellant based on reprisal (prior EEO activity) when she was issued a

letter of warning for an incident that took place on July 30, 1994.

BACKGROUND

During the period in question, appellant was employed as a Distribution

Clerk at the Liberty, Missouri, Post Office. Appellant filed a formal

complaint in June 1995 alleging that she was retaliated against when:

(1) she was issued a letter of warning for an incident that took place

on July 30, 1994; (2) on July 12, 1994, she was charged with 1.35 hours

of annual leave rather than leave without pay; and (3) the position

description for the position of Bulk Mail Clerk was altered so that she

could not bid for it. Following an investigation of the three issues,

appellant requested an administrative hearing. Prior to the hearing,

appellant withdrew Issues 2 and 3 and the scope of the hearing was

limited to Issue 1.

In a recommended decision (RD) dated July 15, 1997, the AJ found that

appellant had not been discriminated against. The AJ initially found

appellant was able to establish a prima facie case based on reprisal, and

then found that the agency had articulated a legitimate, nondiscriminatory

reason for issuing appellant the LOW, i.e., failing to follow instructions

by refusing a direct order to work overtime. Regarding the question of

pretext, the AJ conducted a lengthy analysis of 12 contentions made by

appellant and concluded that she had not demonstrated that the agency's

articulated reason was pretextual. In particular, the AJ found it was

undisputed that appellant had refused a direct order to work overtime.

The AJ also rejected appellant's argument that she was afraid to stay

and work overtime.

Following the issuance of the RD, the agency issued a final decision

(FAD) in which it adopted the RD. It is from this decision that appellant

now appeals.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. Appellant has the initial burden

of establishing a prima facie case of discrimi-nation. If appellant

meets this burden, then the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant must then prove, by a prepon-derance of the evidence, that

the legitimate reason articulated by the agency was not its true reason,

but was a pretext for discri-mination. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

We find, as the AJ did, that appellant adduced sufficient evidence

to establish a prima facie case based on reprisal. See Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,

324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976). We also find,

however, that the agency articulated a legitimate, nondiscriminatory

reason for the issuance of the LOW which appellant has not demonstrated is

pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

In so finding, we have reviewed the record, along with appellant's

statement on appeal, and, like the AJ, find insufficient evidence to

conclude that the agency's articulated reason is unworthy of credence

or that the issuance of the LOW was related to appellant's prior EEO

activity.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the FAD and find appellant has

not established that the agency discriminated against her as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

OCT 30, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations