01977061
02-01-2000
Denise Plourde, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Areas), Agency.
Denise Plourde v. United States Postal Service
01977061
February 1, 2000
Denise Plourde, )
Complainant, )
) Appeal No. 01977061
v. ) Agency No. 4B-060-1079-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), 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 she became aware
that her supervisor gave her a poor evaluation which resulted in her
being denied a transfer to the Hartford, Connecticut Post Office.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Part Time Flexible Distribution/Window Clerk, at the
agency's Kensington, Connecticut facility. Complainant alleged that
the Postmaster issued her the evaluation in retaliation for her filing
an EEO complaint in November 1995. Complainant contended that the
evaluation is not supported by any documentary evidence, such as records
of disciplinary action or counseling. She averred that the Postmaster
asked her out to lunch and told her that he would not approve a transfer
because he would "never let her go." Complainant alleged that after she
filed an EEO complaint in November 1995 about the agency's distribution
of hours, the Postmaster scrutinized her work more closely than before.
She alleges that she performed well, and that contrary to the evaluation,
she is capable of handling different assignments. Complainant averred
that the only time she refused an assignment was when she refused to go
outside and get the box mail in the snow until someone threw down rock
salt or cleared the area.
The record reveals that the Postmaster issued an evaluation for
complainant when she requested a transfer. According to the record,
he rated complainant "Satisfactory" in job knowledge, work performance
for accuracy and thoroughness, scheme proficiency, safety, attendance
and punctuality, and customer relations. He rated complainant "Below
Average" in work performance, and "Unsatisfactory" in her relationship
with supervisors and co-workers and adaptability in handling different
assignments. The Postmaster noted on the evaluation form that he would
not accept complainant as a transfer into his office or unit.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a complaint on February 28, 1996. At
the conclusion of the investigation, complainant was given the choice
of a hearing before an EEOC administrative judge or a final decision
by the agency. She failed to respond, and on September 17, 1997, the
agency issued a final decision finding no discrimination.
The FAD concluded that the agency had articulated legitimate,
nondiscriminatory reasons for its action, which complainant failed to
prove were a pretext for discrimination. Specifically, the Postmaster
averred that complainant did not like to break down or sort the incoming
mail, rather she only liked working the window or the accountable mail
operation. He recalled that complainant talked a lot while working,
became confrontational, and did not take direction well. The Postmaster
provided examples in support of his testimony. Furthermore, the
Postmaster averred that although complainant's performance was not
bad enough to warrant disciplinary action, it did call for a less
than satisfactory evaluation for a transfer request. He denied asking
complainant out to lunch individually, but rather, invited a group out
to visit him at the Windsor, Connecticut office. The Postmaster denied
retaliating against complainant and stated that his evaluation was based
on his evaluation of complainant's work in conjunction with statements
supplied by complainant's two supervisors.
Both Supervisors of Customer Services averred that complainant did not
like to be assigned the duty of breaking down and sorting the mail.
One stated that complainant took frequent breaks while she talked with
co-workers, and did not help out her other co-workers. Another Supervisor
of Customer Services recalled that as long as complainant worked the
window assignment, she performed well, however, he also found complainant
to be confrontational.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that complainant failed to prove that the
agency's reasons for its actions were a pretext for discrimination.
We note that the Postmaster's evaluation is fully corroborated by the
testimony of both of complainant's supervisors. Complainant has not
provided any evidence which would prove that the agency's reasons for
its action was a pretext for reprisal. In fact, she provides a diary of
the days surrounding her receipt of the evaluation. Contained therein
is a description of events which fully support the agency's contentions
regarding complainant's performance on the job.
Therefore, after a careful review of the record, and 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:
February 1, 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:
_________________________
_________________________
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.