01971243
10-06-1999
Deborah McMillian-Farrie, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah McMillian-Farrie v. United States Postal Service
01971243
October 6, 1999
Deborah McMillian-Farrie, )
Appellant, )
) Appeal No. 01971243
v. ) Agency No. 1C-191-1037-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On November 21, 1996, Deborah McMillian-Farrie (the appellant) timely
filed an appeal with the Equal Employment Opportunity Commission (the
Commission) from a final agency decision (FAD) dated October 29,
1996, 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 Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant failed to prove that the agency discriminated against her based
on race (black) and sex (female) when she was forced to move out of her
office.
BACKGROUND
Appellant was employed by the agency as a Plant Safety Specialist at the
Philadelphia, Pennsylvania General Mail Facility. As the Plant Safety
Specialist, she originally reported directly to the Plant Manager,
but, under a reorganization plan in the Allegheny Area, her position
was changed so that she reported to the District Senior Safety and
Health Specialist. As part of this change in reporting relationship,
appellant's Plant Manager decided that her office should be moved so
that she worked in the same area as her new supervisor to promote the
"team concept."
She filed a formal complaint on March 10, 1995, alleging discrimination
on the bases of race (black) and sex (female) when on October 11, 1994,
she was forced to move out of her office. She alleged that her office
had been subsequently given to a lower graded white male employee.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified appellant of her right to request an
administrative hearing. Appellant timely requested a hearing before a
Commission Administrative Judge, but in a letter dated October 8, 1996,
she withdrew that request and asked that the agency issue its final
decision on the record. The agency issued its FAD on October 29, 1996.
In its FAD, the agency found that the appellant had failed to establish
a prima facie case of race and sex discrimination because she was unable
to demonstrate that she was treated less favorably than any similarly
situated employee who was not a member of appellant's protected groups.
According to the FAD, appellant had not shown that there were any
employees similarly situated to her, in that three of the employees
she cited were in one or both of her protected categories and had
also been moved from their offices. The other comparison employees
cited by appellant, while in neither of her protected groups (all five
were white males), were not located at appellant's facility and had
different Plant Managers, and so the agency found that they were not
similarly situated employees to the appellant.<1> The FAD further
stated that appellant had failed to establish that the legitimate,
nondiscriminatory reason articulated by the agency for its action was a
pretext for discrimination. It did not specifically address appellant's
allegation that a white male had been moved into her office.
This appeal followed. Appellant argued that the investigation into
her complaint was less than complete and flawed because it did not
look at the other comparison employees she had cited in her affidavits.
In her affidavits, she named other individuals who could have been moved
but were not, and claimed that "there are other functional areas where
there were 'team members' too numerous to list" working throughout the
building "who were not mandated to move." Appellant also argued that
the Plant Manager's reason for moving her out of her office, promoting a
"team concept," was pretext for his discrimination, as was the reason
given in management affidavits for moving the white male employee into
her old office.
In its response to appellant's appeal, the agency counters that it had not
examined the other comparison employees named by appellant because they
"do not add any meaningfully different similarly situated comparisons"
to the analysis of appellant's case. Regarding the white male that
was given appellant's old office, the agency called that "an unfounded
allegation" and stated that the white male shares the appellant's old
office with a black female employee.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For appellant to prevail, she 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). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue
of whether appellant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination.<2> U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to appellant's claims of discrimination, the agency
presented evidence that the reporting relationship had changed so
that appellant no longer directly reported to the Plant Manager and
reported instead to the District Senior Safety and Health Specialist.
The Plant Manager wished that her work area be in closer proximity to
her supervisor's in order to promote the idea of working as a team, and
so ordered her to be moved. We find that the agency has articulated a
legitimate, nondiscriminatory reason for its decision to move appellant
from her private office to a different work area.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. She did not present any evidence
sufficient to demonstrate that she was moved for discriminatory reasons,
or that the white male occupying her old office had been moved there
for discriminatory reasons. Therefore, the agency's determination that
appellant failed to establish that she was discriminated against was
correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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. 6, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Appellant had cited other Plant Safety Specialists in the Allegheny
Area who were not moved to different offices once their reporting
relationships had been changed under the reorganization plan.
2 We note that the agency erred to the extent that it found that
appellant had not established a prima facie case of race and sex
discrimination because she was unable to demonstrate that she was
treated less favorably than any comparative employee. We note that to
establish a prima facie case, appellant 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. It is not
necessary for the appellant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary to
support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).