Danielle Moore, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 2, 2000
05a00059 (E.E.O.C. Mar. 2, 2000)

05a00059

03-02-2000

Danielle Moore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Danielle Moore v. United States Postal Service

05A00059

March 2, 2000

Danielle Moore, )

Complainant, )

) Request No. 05A00059

v. ) Appeal No. 01986863

) Agency No. 1A072002097

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On October 14, 1999, Danielle Moore (complainant) initiated a request to

the Equal Employment Opportunity Commission (Commission) to reconsider

the decision in Danielle Moore v. United States Postal Service, EEOC

Appeal No. 01986863 (September 19, 1999).<1> EEOC Regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified

and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.405(b)).

The party requesting reconsideration must submit written argument

or evidence which tends to establish one or more of the following

two criteria: the appellate decision involved a clearly erroneous

interpretation of material fact or law; or the decision will have a

substantial impact on the policies, practices or operations of the

agency. Complainant's request is denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

affirmed the Administrative Judge's decision finding that complainant

failed to establish a prima facie case of discrimination.

BACKGROUND

The record reflects, that for the relevant time period, complainant

was employed by the United States Postal Service a causal mailhandler.

It should be noted, that at the relevant time period, complainant was

the only casual mailhandler at the facility. On April 14, 1997, while

performing her duties at work, complainant pushed a GPC containing mail

into another GPC causing injury to her hand, resulting in limited duty.

After the accident transpired and complainant was warned to be careful

while working and to comply with safety procedures, she was observed

jumping over a skid. In response to complainant's failure to comply

with the safety regulations and for engaging in perilous behavior while

performing her duties, she was terminated. Thereafter, complainant

contacted an EEO Counselor claiming that she was terminated due to her

race and color. This matter was incapable of being informally resolved

and in July 1997, complainant filed a formal complaint claiming she was

terminated due to her race and color.

On August 26, 1998, the Administrative Judge (AJ) assigned to the case

determined that there were no issues of material fact and issued a

recommended decision without a hearing. The recommended decision found

that complainant failed to establish a prima facie case of discrimination

because complainant could not cite an appropriate comparison employee.

Furthermore, the AJ found that even if complainant did in fact

establish a prima facie case, the agency articulated a legitimate non

discriminatory reason for terminating complainant. Therefore, the AJ

found no discrimination in this complaint.

On August 31, 1998, the agency adopted the AJ's recommended decision

finding no discrimination.

On request, complainant submits no evidence demonstrating that the prior

decision involved a clearly erroneous interpretation of material fact

or law.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of

the criteria of 29 C.F.R. � 1614.405 is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited.

Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989).

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

complainant's request does not meet the criteria of 29 C.F.R. � 1614.405.

Specifically, complainant has failed to present a scintilla of evidence

to demonstrate that the previous decision was improper.

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. Complainant has the initial

burden of establishing a prima facie case of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); See also Prewitt

v. U.S. Postal Service, 662 F.2d 292, 305 n.19 (5th Cir. 1981). If

complainant meets this burden, the burden shifts to the agency to

articulate some legitimate, nondiscriminatory reason for its challenged

action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). Complainant must then prove, by a preponderance of the evidence,

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

reason, but was a pretext for discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 511 (1993).

If the agency has articulated a legitimate, nondiscriminatory reason for

its actions, the factual inquiry can proceed directly to the third step of

the McDonnell Douglas analysis, the ultimate issue of whether complainant

has shown by a preponderance of the evidence that the agency's actions

were motivated by discrimination. U.S. Postal Service Bd. Of Governors

v. Aikens, 460 U.S. 711 (1983); Padilla v. Department of the Air Force,

EEOC Request No. 05940634 (June 27, 1995); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson

v. Department of Health and Human Services, EEOC Request No. 05900456

(June 8, 1990).

The elements of the prima facie case are determined by the individual

circumstances of each case and the bases of discrimination alleged, but

regardless of the specific action at issue, complainant may establish

a prima facie case by demonstrating: 1) that she is a member of a

protected group; 2) that she is similarly situated to employees outside

of her protected group; 3) and that she was treated differently than

those employees. Potter v. Goodwill Industries of Cleveland, Inc., 518

F.2d 864, 865 (6th Cir. 1975). We note that to establish a prima facie

case, complainant must only present evidence which, if unrebutted,

would support an inference that the agency's actions resulted from

discrimination. Furnco, 438 U.S. at 576.

In the present case, it is not in dispute that complainant is a member

of a protected group. However, the complainant has not established that

there are similarly situated employees outside her protected group that

were treated differently. In fact, complainant cannot establish other

similarly situated employees because she was the only casual mailhandler

at the agency. Furthermore, during the investigation, complainant's

supervisor provided a list of permanent employees that were also

terminated for engaging in perilous conduct while performing their duties

and complaint did not challenge the information. Therefore, complainant

failed to establish a prima facie case of discrimination.

Assuming arguendo, that complainant did establish a prima facie case of

discrimination, the agency has articulated a legitimate non discriminatory

reason for its action. In this case, the agency has articulated that

complainant was terminated for engaging in unsafe behavior. Complainant

being aware of this assertion by the agency, has not shown that it is in

fact a pretext, disguising the underlying discriminatory motive. Thus,

complainant has not shown by a preponderance of the evidence that the

agency has discriminated against her.

The Commission further notes that, in her request for reconsideration,

complainant asserts no evidence or argument. Consequently, based on

our review of the record, we find that complainant has failed to provide

evidence which would warrant a reconsideration of the previous decision.

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds complainant's

request does not meet the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to deny complainant's request.

The decision of the Commission in EEOC Appeal No. 01986863 remains the

Commission's final decision. There is no further right of administrative

appeal from a decision of the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

March 2, 2000

____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.