Donna Freeze, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01975351 (E.E.O.C. Mar. 9, 2000)

01975351

03-09-2000

Donna Freeze, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Donna Freeze v. United States Postal Service

01975351

March 9, 2000

Donna Freeze, )

Complainant, )

) Appeal No. 01975351

v. ) Agency No. 4D280102595

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

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 that she was discriminated against when she was

terminated from her job as a rural carrier relief worker. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the Commission affirms the FAD.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that

she was discriminated against on the above bases.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a rural carrier relief worker, at the agency's China Grove,

North Carolina facility. Complainant alleged that she was fired because

she testified against the Postmaster in a co-worker's EEO complaint in

January 1994.

Believing she was a victim of discrimination, complainant sought EEO

counseling on October 7, 1994. Subsequently, she filed a complaint on

February 17, 1995. At the conclusion of the investigation, complainant

requested a hearing. On June 4, 1997, the complainant rescinded her

hearing request.<2> The agency issued a FAD on June 24, 1997. The FAD

concluded that complainant failed to establish a prima facie case of

reprisal discrimination because she presented no evidence that a nexus

existed between the protected activity and her termination.

On appeal, complainant contends that the agency failed to consider

a number of her arguments. Specifically, she believes that the

Administrative Judge (AJ) improperly disallowed her witnesses and

that the agency intentionally did not make available two witnesses.

The complainant requests that the case be remanded for an evidentiary

hearing that includes all of her proposed witnesses. The agency requests

that we affirm its FAD.

ANALYSIS AND FINDINGS

The Commission finds that the record does not support a showing that

the AJ abused her discretion when she did not allow the 14 witnesses to

testify about the unfair treatment in the China Grove Postal Service.

Pursuant to 29 C.F.R. � 1614.109(e), the AJ will limit attendance at

the hearing to persons with direct knowledge relating to the complaint.

In this case, the proposed testimony of these witnesses was general

information about discrimination at the agency. The complainant did not

offer any proposed testimony from these witnesses which addressed her

specific termination. Since the AJ did not believe these 14 witnesses

would provide information directly related to her complaint, the AJ was

within her discretion to disallow their testimony.

Also, the Commission finds that the agency complied with regulations

and provided for the attendance of all employees approved by the AJ to

be witnesses. 29 C.F.R. � 1614.109(e). However, both witnesses approved

for the complainant experienced medical problems which prevented them from

attending the hearing. One witness had undergone five heart operations

within one year and did not want to be involved in a stressful situation,

and the other witness was available to testify by telephone. Since the

agency did not prevent either of these witnesses from testifying for

the complainant, the agency did not interfere with her right to a fair

hearing.

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). For complainant 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. Id. 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

action. 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).

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show: (1) that she engaged in

protected activity; (2) that the alleged discriminating official was aware

of the protected activity; (3) that she was disadvantaged by an action

of the agency contemporaneously with or subsequent to such participation;

and (4) that there is a causal connection between the protected activity

and the adverse employment action. Hochstadt v. Worcester Found. for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545

F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,

86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

A causal connection may be shown by evidence that the adverse action

followed the protected activity within such a period of time and in such

a manner that a reprisal motive is inferred. Grant v. Bethlehem Steel

Corp., 622 F.2d 43 (2nd Cir. 1980). "Generally, the Commission has held

that a nexus may be established if events occurred within one year of

each other." Patton v. Department of the Navy, EEOC Request No. 05950124

(June 27, 1996).

In this case, the agency conceded that complainant participated in prior

EEO activity when she testified on behalf of another co-worker in 1994.

Also, the Postmaster at the facility acknowledged this activity. The

record supports that complainant's disciplinary problem and termination

occurred after the 1994 EEO testimony. Since the adverse action occurred

approximately one month after her protected activity, one can infer a

discriminatory motive. Therefore, the complainant has established a

prima facie case of reprisal discrimination.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

The Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its action. Specifically, the agency

stated that complainant was terminated for, among other things, failure

to follow instructions, mis-delivering mail, curtailing mail without

permission, making long distance telephone calls without authorization,

and misrepresenting her work hours between February and July 1994.

The agency provided customer complaints, a customer mis-delivery log,

co-workers' affidavits, and a telephone log as proof of complainant's

failure to follow instructions and to perform her job duties.

The record adequately reflects complainant's disciplinary problems.

Customers and co-workers began to complain of complainant's behavior

in February 1994. The complainant received a February 4, 1994 letter

of warning that her failure to follow instructions and to perform job

duties would not be tolerated. Specifically, the Postmaster warned her

about creating disruptions on the workroom floor and mis-delivering mail.

On May 25, 1994, complainant received another letter of warning in lieu

of suspension after she curtailed mail without permission and solicited

employees to sign a petition that she was being treated unfairly. Again,

on June 26, 1994, complainant received a letter of warning in lieu of

suspension after she made an unauthorized long distance call to a union

official and misrepresented her work hours. Finally, on September 15,

1994, complainant received a discharge letter after mis-delivering mail,

failing to deliver a package, arguing with a customer, curtailing mail

without permission, disrupting workroom operations, and misrepresenting

work hours. The complainant has failed to show that her January 1994

testimony caused her termination, rather than her six months of documented

disciplinary problems.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory event, complainant now bears the burden

of establishing that the agency's stated reasons are merely a pretext

for discrimination. Shapiro v. Social Security Administration, EEOC

Request No. 05960403 (December 6, 1996). Complainant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

We find that complainant has failed to meet this burden.

To support her claim of reprisal, the complainant stated that she had no

record of misconduct before she testified against the Postmaster and that

she began to receive criticism of her work behavior after January 1994.

However, she did not submit tangible proof that the conduct which prompted

discipline did not occur. Accordingly, the complainant has not shown

that the agency was motivated by discriminatory animus.

CONCLUSION

The Commission finds that complainant failed to present evidence that the

AJ abused his discretion or that the agency interfered with her right to

a fair hearing. In addition, the complainant failed to present evidence

that, more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. Therefore, we AFFIRM the FAD.

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:

03/09/00

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________ ______________________________

Date Equal Employment Assistant

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.

2 The complainant argues that the Administrative Judge (AJ) in this

case denied approximately 14 witnesses from testifying on her behalf.

In addition, the complainant argues that the agency intentionally

prevented two employees from testifying. On the day of the hearing,

April 4, 1997, two of the complainant's approved witnesses were not

made available to testify for her. Believing that she was not able to

properly present evidence to support her case, the complainant voluntarily

rescinded her request for a hearing.