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