Deborah McMillian-Farrie, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
01971243 (E.E.O.C. Oct. 6, 1999)

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).