01986264
03-31-2000
Debora A. Curdie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.
Debora A. Curdie v. United States Postal Service
01986264
March 31, 2000
Debora A. Curdie, )
Complainant, )
) Appeal No. 01986264
v. ) Agency No. 1-J-484-0033-07
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of race (White), religion (Pentecostal) and sex (female)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated
against when on June 10, 1997, management placed her in non-duty status
and on June 26, 1997, issued her a Notice of Removal. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was employed
as a Parcel Post Distribution Clerk at the agency's Detroit Bulk Mail
Center in Allen Park, Michigan. On June 10, 1997, complainant told
her supervisor (CS) that she was going "to blow his f_ _ _ _ _ _ head
off," presumably because earlier that day he had issued her a Notice
of Removal for Repeated Failure to Report for a Fitness For Duty Exam
(R1).<2> CS immediately placed complainant in emergency off-duty status.
CS rescinded R1 and, on June 26, 1997, issued a Notice of Removal for
Threatening Conduct (R2). Believing the agency discriminated against
her, complainant sought EEO counseling and subsequently filed a formal
complaint on August 19, 1997. At the conclusion of the investigation,
when complainant failed to timely request a hearing before an EEOC
Administrative Judge, the agency issued a final decision from which
complainant now appeals. Complainant did not submit a statement in
support of her appeal. The agency requests that we affirm the FAD.
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), the Commission agrees with the agency that
complainant failed to establish a prima facie case of discrimination
on any of her alleged bases. In reaching this conclusion, we note that
complainant failed to name any similarly situated comparative employees
who were treated more favorably under similar circumstances.<3> Moreover,
by engaging in such behavior, we find that complainant was not meeting
the legitimate expectations of her job, and we thus decline to infer a
discriminatory motive on the part of the agency in issuing discipline.
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 (M1199)
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). 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:
March 31, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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 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.
2 This threat was witnessed by a fellow employee who requested anonymity
due to fear of complainant and submitted an unsworn statement that
complainant made such a threat.
3 We note that none of the named comparative employees, who complainant
alleges were treated more favorably than she was, were under the same
direct supervision as complainant. In the two cases where the Reviewing
Official was the same, the named employees were not treated more favorably
than complainant. One of them was placed in non duty status, and the
other was removed.