01a53678r
08-25-2005
Denise Carroll, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Denise Carroll v. United States Postal Service
01A53678
August 25, 2005
.
Denise Carroll,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A53678
Agency No. 1F-901-0171-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time period, complainant
was employed as a clerk at the Los Angeles, California Processing and
Distribution Center (Main Office) as a nonbidded employee. Complainant
sought EEO counseling and subsequently filed a formal complaint on
December 4, 2003, alleging that she was discriminated against on the
bases of race/color (African-American), sex (female), and age (born
September 19, 1952) when on June 28, 2003, complainant's job assignment
was changed without advance notice.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. In its FAD, the agency
concluded that complainant was not subjected to unlawful discrimination.
In an investigative affidavit, complainant stated that after returning
from vacation, her supervisor told her on June 23, 2003 that she no
longer worked in the unit and was not supposed to be at the Main Office
anymore. Complainant asserted that no one notified her of a change in
her job assignment. She stated she was then directed to report to
the Eagle Rock Station to work but because she had already reported
to the Main Office and had not received notice of the work change,
she was told by the supervisor to start the new work assignment on the
following Monday, June 30, 2003, at 6:00 a.m. She further asserted
that the supervisor wrote down the telephone number and address of the
Eagle Rock Station for her. Complainant stated that when she reported to
the Eagle Rock Station on June 30, 2003, management there did not know
anything about her reassignment, and directed her to report to Hollywood
Station, where the supervisor told her to report to the Lincoln Heights
Station. Complainant further stated that when she called the Lincoln
Heights Station, management there told her that they did not know about
her reassignment to Lincoln Heights. Complainant asserted that someone
from the area office then called and apologized for the confusion and
informed complainant that she should report to the Los Feliz Station
the next day. Complainant maintained that when she arrived at Los
Feliz, the supervisor stated that he had not received any paperwork on
her reassignment but allowed complainant to work there. Complainant
maintains that agency policy provides that employees must receive 30
days advance written notice of a change in a work assignment, which she
did not receive.
The Manager of Personnel Services responded that during the relevant time
period, complainant was one of the unassigned mail processing clerks
working in the Mail Office Box Section at the Main Office. She stated
that for business reasons, a decision was made by management to reduce
the number of permanent assignments in the Mail Office Box Section, and
contractually, employees holding bidding assignments could not be excessed
out of a section while nonbidded employees remained in the section.
She asserted that complainant and the other unassigned employees were
notified by letter dated June 23, 2003 that they were unassigned employees
working in a section from which bidded employees were being excessed
and as such, it was necessary to give them temporary assignments at
another location. She further stated that first notice of the assignment
change dated June 23, 2003 was hand-delivered to complainant's section
on June 24, 2003. She stated that all of the unassigned employees in
the section signed for receipt of their notice except for complainant
who was not at work. She stated that when the Office of Personnel was
notified that the Complainant was not at work, the notice was mailed to
her address of record. The Track and Confirm system indicates that the
Complainant's letter was delivered to complainant's address of record
on June 26, 2003 at 11:41 a.m. She further stated that a list of the
remaining available temporary assignments was sent to complainant on
July 17, 2003 and complainant was advised that the effective date of her
change in assignments was July 26, 2003. She maintained that complainant
received notice that her assignment was changing more than 30 days in
advance of the actual change.
The record contains a copy of a letter to complainant dated June 23, 2003
wherein the agency notified complainant that as an unassigned employee
working in a section from which bidded employees were being excessed,
she had been reassigned to the Lincoln Heights Station effective June
28, 2003. A confirmation notice reveals that the letter was received at
complainant's address on June 26, 2003. The record also contains a copy
of a letter from the agency dated July 24, 2003 wherein complainant was
advised to review a list of duty assignments and select which assignment
she preferred by July 22, 2003. The new assignment would become effective
July 26, 2003.
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 complainant to prevail, 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. See 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. See
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. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See 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).
In this case, the agency has offered legitimate, non-discriminatory
reasons for its actions. Specifically, the agency stated that it informed
complainant of the reassignment by hand-delivering the notice to her
section on June 23, 2003 and to her home on June 26, 2003. Upon review
of this matter, we first note that the record suggests that complainant
was not given adequate advance notice of her reassignment. The record
contains a copy of agency policy providing that when excessing is planned,
the agency must inform employees of its plans with an explanation
for the reassignment at least 30 days before the excessing occurs.
In this case, the agency issued a letter notifying complainant and all
other nonbidded employees of their reassignment on June 23, 2003, five
days before the effective date of their reassignment. However, we find
that this departure from agency policy does not evidence discriminatory
motive because the record confirms that the agency provided the same
notice to complainant that was provided to all other nonbidded employees
in her section, although complainant did not receive the notice at
the very same time because she was absent from her section when the
written notice was delivered. There is no evidence that complaiant was
treated any differently than other nonbidded employees in her section.
Moreover, the record discloses that the delay in informing complainant was
compounded by the apparent failure of complainant to receive the notice
sent to her home address, miscommunication, and the confusion of various
management officials about her reassignment. We find that complainant
has not provided any persuasive evidence that the agency's legitimate,
non-discriminatory reasons for its actions were a pretext for unlawful
discrimination. Consequently, we find that the agency properly found
no discrimination. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________ _August 25, 2005______________
Carlton M. Hadden, Director Date
Office of Federal Operations