01a51724
03-23-2005
Faye E. Kennedy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Faye E. Kennedy v. United States Postal Service
01A51724
March 23, 2005
.
Faye E. Kennedy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51724
Agency No. 1C-276-0067-03
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her formal complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Mail Handler,
PS-04, at the agency's Raleigh Processing & Distribution Center in
Raleigh, North Carolina. Complainant filed a formal complaint on
September 9, 2003, alleging that she was discriminated against on the
bases of race (African-American), sex (female), religion (Methodist),
color (black), and age (D.O.B. 5/2/52) when:
on July 9, 2003, she was issued a �Notice of a No Time Served 7-Day
Suspension.'
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ. On November 2, 2004, the AJ assigned to
hear the complaint issued an Order dismissing complainant's request for
a hearing. The AJ directed the agency to issue a final agency decision
based on complainant's failure to participate in the discovery process.
In the instant FAD, dated December 3, 2004, the agency found no
discrimination. The agency found that complainant failed to established
that she was subjected to discrimination based on disparate treatment.
The agency noted that complainant identified several similarly
situated employees outside of her protected group; however, the agency
found that complainant did not provide specific dates or information
relevant to the alleged event that would indicate that these employees
were treated more favorably. The agency also specifically addressed
complainant's claim of discrimination on the basis of age, and found that
complainant failed to establish a prima facie case of discrimination.
Further, the agency determined that management articulated legitimate,
nondiscriminatory reasons for its employment actions, and that complainant
did not establish that this reason was a pretext for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. 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 actions. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The evidence supports a determination that the agency articulated
legitimate, non-discriminatory reasons for its employment actions.
The agency found that complainant was issued a Notice of No Time Served
7-Day Suspension for unsatisfactory attendance. The record in this
case contains an affidavit from complainant's Supervisor. Therein, the
Supervisor stated that he issued complainant the suspension based upon
unsatisfactory attendance, for being absent from duty due to unscheduled
leave on the following dates: April 11, 2003 (0.61 hours); May 20, 2003
(0.13 hours); May 27, 2003 through May 30, 2003 (32.00 hours); and June 2,
2003 (0.10 hours). The Supervisor stated that complainant's suspension
was later reduced to a Letter of Warning as a result of complainant's
pursuit of the grievance process.
Further, the Supervisor stated that he used progressive corrective
action when on November 11, 2002, complainant was issued a Letter of
Warning for failure to be regular in attendance/unscheduled absences.
The Supervisor stated that all employees were given �ample warning through
the use of service talks and one on one discussions� concerning irregular
attendance. The Supervisor stated that when complainant was questioned
why she failed to report to work on time, �there would always be an
excuse, which was valid to her but had no real substantive credibility.�
Complainant has not demonstrated that the agency's articulated reasons
for its actions were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 23, 2005
__________________
Date