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 On June 4, 1997, the complainant rescinded her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.