Diane Kirkman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01975353 (E.E.O.C. May. 18, 2000)

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.