01985918
04-05-2000
Cynthia Vereen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cynthia Vereen v. United States Postal Service
01985918
April 5, 2000
Cynthia Vereen, )
Complainant, )
)
v. ) Appeal No. 01985918
) Agency No. 4F-956-0151-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On July 21, 1998, Cynthia Vereen (hereinafter referred to as complainant)
filed a timely appeal from the June 24, 1998, final decision of the United
States Postal Service (hereinafter referred to as the agency) concerning
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a)))<1>
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (to be
codified as 29 C.F.R. � 1614.405). For the reasons that follow, the
agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race (black), sex, and reprisal when she received
a 14-day suspension in June 1997.
Complainant filed her formal complaint on September 2, 1997. Following an
investigation, she was notified of her right to request a hearing before
an EEOC Administrative Judge or an immediate final agency decision
(FAD). She did not respond, and the agency issued a FAD, finding no
discrimination. Complainant has filed the instant appeal.<2>
Complainant worked as a full-time window clerk in the box section in
Sacramento, California. The agency issued her a notice of a 14-day
suspension for conduct unbecoming a postal employee. Specifically,
complainant was charged with physically assaulting another employee (E1)
and using unacceptable language. Complainant asserted that E1 was the
aggressor but statements from employees who witnessed the altercation
belied her contention.<3> E1 was not disciplined.
Complainant's immediate supervisor (S1) stated that he recommended the
suspension based on a thorough investigation of the incident, wherein
he found that complainant was identified as the aggressor. He asserted
that the discipline was in accord with the nature of the improper conduct.
S1 also stated that he had issued disciplinary actions to other employees,
including a charge of conduct unbecoming a postal employee to an Asian
male employee who used profanity.
In general, claims that allege disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Initially, for complainant to prevail, s/he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Following this
established order of analysis is not always necessary where the agency
articulates an explanation for its actions. In such cases, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for issuing a suspension to complainant. S1 stated that, based on an
extensive investigation, he concluded that complainant was the aggressor.
S1 explained that complainant's behavior warranted the disciplinary
action and that it was in accordance with the severity of the conduct.
Based on the record, including documents submitted by complainant,
we find that S1's action was supported by the record.
The burden now returns to complainant to demonstrate that the agency's
articulated reasons for its actions were the result of discrimination.
Complainant contends that she was not the aggressor, but her claim is
not supported by the record. She has not shown that she was treated
differently than other employees who engaged in similar behavior or
that she was singled out for disparate treatment. Further, she has not
demonstrated that the agency acted on the basis of a prohibited factor,
such as race or sex. Based on our review of the record, we find that
complainant has not shown that the agency's reasons for its actions
were pretextual.
To establish a prima facie case of reprisal discrimination, 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 between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). 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. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even if complainant established a prima facie case, as stated, above, the
agency articulated legitimate, nondiscriminatory reasons for its actions
that complainant did not demonstrate were pretextual. Therefore, we
find that the agency did not discriminate against complainant in reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 5, 2000
Date Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ _________________________
Date
1On 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.
2Complainant's notice of appeal requested an extension of time, and no
further documents were submitted. The Commission finds that the record
contains sufficient information on which to decide this matter, including
an extensive statement with supporting documents from complainant.
3Apparently the altercation grew out of complainant's discontent with
the rearrangement of sorting boxes and a change in operational duties
to others.