01997274
12-12-2000
Cynthia Marks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Cynthia Marks v. United States Postal Service
01997274
December 12, 2000
.
Cynthia Marks,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01997274
Agency No. 4-H-350-0246-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of
retaliation (prior EEO activity) when: (1) the facility Postmaster queried
her on May 18, 1998 regarding a mistake complainant made on a money order;
(2) she received an investigative interview on May 15, 1998 for leaving
a stamp book unsecured; (3) she received an investigative interview
on May 16, 1998 for attendance deficiencies; and (4) on May 18, 1998,
she was singled out for excessive talking.
The record reveals that during the relevant time, complainant was
employed as a PS-05 Window Clerk at the agency's Cullman, Alabama facility
(�facility�). Believing she was a victim of discrimination, complainant
filed a formal complaint with the agency on July 9, 1998. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614, the agency
issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of retaliation as she did not demonstrate the requisite
causal connection between her protected activity and the agency's actions.
In so finding, the FAD noted the testimony of the facility Postmaster
(PM) that complainant erroneously prepared a money order and the PM
explained the error to her,
explained re-payment options and offered to contact the customer to
recover the money shortage.
The FAD further noted the corroborated testimony of the PM that
complainant's stamp stock was left unsecured, and the PM concurred with
the actions taken by the Supervisor, Customer Services (SCS) in giving
her a predisciplinary interview and subsequent letter of warning.
The FAD also noted that the PM stated that complainant was talking
excessively on May 18, 1998, and stopped sorting mail while she was
talking to a co-worker. In addition, the FAD noted the testimony of
SCS that complainant's attendance was not satisfactory and she had
not demonstrated that her unscheduled absences were covered by the
Family and Medical Leave Act. Finally, the FAD noted that both the
PM and SCS denied that complainant's prior EEO activity was a factor
in the agency's actions. The FAD found that even assuming, arguendo,
that complainant had established a prima facie case of retaliation,
the agency articulated legitimate, nondiscriminatory reasons for the
actions alleged. Further, the FAD found that in any event, complainant
had failed to demonstrate that it was more likely than not that the
agency's actions were motivated by retaliatory animus. Complainant has
made no new contentions on appeal.
Based on the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), in order to establish a prima facie case of retaliation,
complainant must show that: (1) she engaged in prior protected activity
of which relevant management officials were aware; (2) she was subject to
an adverse action; and (3) there is a causal link between the protected
activity and adverse action. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). 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.
See Devereux v. United States Postal Service, EEOC Request No. 05960869
(April 24, 1997).
Initially, the Commission disagrees with the FAD's finding that
complainant failed to establish a prima facie case of reprisal
discrimination because she failed to demonstrate a causal connection
between her prior EEO activity and the agency's actions. The record
establishes that the PM and SCS were aware of complainant's prior EEO
activity and she was subject to adverse actions by management within
such time and manner that a retaliatory motive can be inferred.<2>
Hochstadt, supra. However, we find that the agency articulated
legitimate, nondiscriminatory reasons for the actions taken against
complainant, which she failed to show were a pretext for retaliation.
In so finding, the Commission notes the testimony of the PM and SCS
that the PM discussed the money order at issue with complainant as
she had erroneously made it for $61.23 rather than $16.23, but did not
take disciplinary action against her. In addition, the SCS testified,
and the record indicates, that complainant was given an interview and
letter of warning when she left stamps for which she was responsible
unsecured on top of the facility safe. Regarding complainant's absences,
the record establishes that she received the letter of warning as during
the first five (5) months of 1998, she used unscheduled leave ten (10)
times for being between .09 hours and .96 hours late for duty. Exhibit 3.
Further, to the extent that complainant alleges that her unscheduled
absences were covered by the FMLA, we note that the Commission is not
authorized to enforce the FMLA and, therefore, we make no finding on
whether the provisions of the Act were violated. Moreover, the PM
testified that he merely informed complainant on the date in question
that he did not mind her talking while she worked, but that she should
not stop sorting mail while she talked as the facility was in danger
of being late with the box mail that day. The Commission further finds
that these incidents are not severe or pervasive enough to be considered
incidents of harassment, as complainant alleged in her formal complaint.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (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
December 12, 2000
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant filed an EEO complaint on April 22, 1998 and the actions
alleged to have taken place in the instant complaint occurred in May of
1998.