01975353
05-18-2000
Diane Kirkman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Diane Kirkman v. United States Postal Service
01975353
May 18, 2000
Diane Kirkman, )
Complainant, )
) Appeal No. 01975353
v. ) Agency No. 1C-441-1131-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her Equal Employment Opportunity (EEO) complaint of
unlawful retaliation based on prior EEO activity and discrimination
based on race (Black), sex (female), age (D.O.B. 10/10/53), physical
disability (bilateral carpal tunnel syndrome and shoulder pain), and
mental disability (stress), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges she was subjected to retaliation and discrimination
when: (1) on her May 30-31, 1996 overnight shift, the plant manager yelled
at her and referred her for disciplinary consideration for allegedly
being away from her assignment without permission; (2) she was forced
to attend a meeting to discuss the incident; and (3) on July 4, 1996,
she was issued a notice of suspension of 14 days or less regarding
the incident. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the FAD is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's John O. Holly facility
in Cleveland, Ohio. Believing she was a victim of discrimination as
referenced above, complainant sought EEO counseling and, subsequently,
filed a complaint on August 6, 1996. At the conclusion of the
investigation, complainant requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ), but subsequently
withdrew her request, and the agency proceeded to issue a FAD on May
16, 1997.
The FAD concluded that complainant failed to establish a prima facie
case of discrimination based on race, sex, or age, because she presented
no evidence that similarly situated individuals not in her protected
classes were treated differently under similar circumstances. The FAD
further concluded that complainant failed to establish a prima facie
case of retaliation because she did not establish that the supervisor
who issued the 14-day suspension at issue was aware of complainant's
prior EEO activity. The FAD further concluded that complainant failed to
establish a prima facie case of disparate treatment based on disability
because she was not an "individual with a disability" within the meaning
of the Rehabilitation Act,<2> and because complainant did not establish
that the supervisor who issued the 14-day suspension was aware of
complainant's alleged physical or mental disabilities, or regarded her
as disabled. Finally, the FAD concluded that even assuming arguendo
complainant had established a prima facie case on any of her claims,
she had failed to demonstrate by a preponderance of the evidence that
management's proffered legitimate reasons for the challenged discipline
were a pretext for discrimination or retaliation.
On appeal, complainant contends that (1) she did not leave her assigned
post at 5:40 a.m. as the plant manager claimed, but rather at 5:55 a.m.;
(2) she was permitted under the collective bargaining agreement to have
five minutes of "wash up time" before her shift ended at 6:00 a.m.;
(3) the supervisor (S1) who issued her suspension did not witness the
incident but was forced to issue the discipline by the plant manager,
who harbored discriminatory and retaliatory animus toward complainant;
and (4) several witnesses corroborated complainant's contention that
the incident in question did not occur at 5:40 a.m. The agency requests
that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
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
agrees with the agency that complainant failed to establish a prima
facie case of discrimination because there was insufficient evidence
to establish that similarly situated employees outside her protected
classes were treated more favorably, or other evidence sufficient to
support an inference of discrimination by the plant manager or S1.
The Commission also agrees with the agency that complainant failed to
establish a prima facie case of retaliation, because complainant concedes
that none of her prior EEO complaints named S1 or the plant manager as
responsible management officials, and there is no evidence that either
of them were aware that complainant had engaged in prior EEO activity.
Moreover, even assuming arguendo that complainant did establish a prima
facie case of discrimination or retaliation, the Commission finds that
complainant failed to present evidence that more likely than not, the
agency's articulated reasons for its actions were pretextual.
In reaching this conclusion, we note that although complainant asserts
that the plant manager harbored discriminatory animus toward her, S1
attested that after hearing both the plant manager's version of events
and complainant's response, she conducted her own investigation and
independently determined to suspend complainant. According to S1, who
is the complainant's second cousin, the plant manager "wanted action
taken, but did not force me to issue any." Record of Investigation
(ROI) at 69. Notwithstanding that witnesses corroborated complainant's
assertion that the confrontation with the plant manager did not occur
at 5:40 a.m., and that a five-minute "wash up" time is permitted before
ending a shift, S1 attested that she disciplined complainant because,
even if the plant manager improperly ordered complainant back to work,
the agency standards of conduct provide that an employee must comply
with supervisory orders even if they believe them to be unfair, and
then can immediately thereafter file a grievance. ROI at 43 (agency
standard 666.5), 68-70 (affidavit of S1). S1 attested that because
this requirement was "common knowledge," she saw fit to discipline
complainant for disregarding the plant manager's instruction.<3>
Regardless of whether S1 was correct in concluding that this standard of
conduct applied to the instant situation, S1's explanation constitutes a
non-discriminatory, non-retaliatory reason for issuing discipline, and
complainant has failed to establish by a preponderance of the evidence
that this proffered explanation is pretextual and that S1's real reason
for issuing the discipline was discrimination or retaliation. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (it is not sufficient
"to disbelieve the employer; the fact finder must believe the plaintiff's
explanation of intentional discrimination") (emphasis in original).
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, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
May 18, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
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.
2In light of our disposition of this matter, we need not reach the issue
of whether complainant is an individual with a disability, because even
assuming that she is, she has failed to establish by a preponderance of
the evidence that she was treated differently because of her disability.
3S1 asserts that the fourteen-day period of suspension constituted
appropriate progressive discipline given complainant's two disciplinary
infractions in the preceding months.