Felisa M. Ruiz, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,

Equal Employment Opportunity CommissionMar 29, 2000
01986060 (E.E.O.C. Mar. 29, 2000)

01986060

03-29-2000

Felisa M. Ruiz, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,


Felisa M. Ruiz v. United States Postal Service

01986060

March 29, 2000

Felisa M. Ruiz, )

Complainant, )

) Appeal No. 01986060

) Agency No. 4I-640-0165-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency, )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning her

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and

the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �

621 et seq.<1> Accordingly, the appeal is accepted in accordance with 64

Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the bases of national origin (Mexican-American), age

(DOB October 12, 1925), and reprisal (prior EEO Activity<2>) when her

supervisor (the Supervisor) tried to prevent her from attending an Early

Assessment Hearing (the Hearing) in district court on June 24, 1997;

on July 17, 1997, she was issued a seven-day suspension for being absent

without leave (AWOL) on June 24, 1997; and on July 28, she was harassed

by not being allowed to participate in an agency telephone survey.

BACKGROUND

Complainant was a General Clerk at the Kansas City, Missouri, Processing

and Distribution Center. Complainant averred that she submitted a

request for three hours of administrative leave to attend the Hearing

scheduled for June 24, 1997,<3> and forty hours of administrative leave

for the week of June 2, 1997, to prepare for the Hearing. The Supervisor

averred that she was advised by the Senior Labor Relations Specialist

and Senior Equal Employment Opportunity Counselor that complainant was

not entitled to administrative leave but could use two or three days of

annual leave. The Supervisor stated that she informed complainant of

this, and complainant then requested leave without pay (LWOP) for the

week of June 2, 1997, as well as for June 24, 1997, because she did

not want to use annual leave. The Supervisor approved the requests.

Complainant stated that she later discovered that she would need the

entire day of June 24, 1997, and requested additional leave.

The Supervisor informed complainant that if a replacement could be

found for her, the leave request for the whole day would be granted.

The Supervisor stated that she had another employee scheduled for

annual leave that day and was not sure she could get a replacement for

complainant for the whole day. Complainant told the Supervisor that she

needed all day because she was not sure what time her counselor would

be there and she needed time to prepare. The Supervisor averred that

the complainant told her that if the time came for the hearing and she

was not prepared she would just take off.

The Supervisor stated that she reminded complainant about the 40 hours of

LWOP which were granted for complainant to prepare for the hearing and

asked why complainant needed the entire day on June 24, 1997, when she

was not sure what time her counselor would be there. Complainant did not

give a specific answer. The Supervisor stated that she told complainant

that she must honor the original leave request.

The Personnel Specialist averred that the Specialist was able to

accommodate complainant's request for the 40 hours after numerous

attempts to find a replacement employee, and to accommodate the request

for June 24, 1997, from 1:00 pm to 5:00 pm after finding a replacement.

The Supervisor averred that at 4:30 pm on June 23, 1997, complainant

gave her a written request for emergency annual leave for the following

morning. The Supervisor asked complainant about the nature of the

emergency, and complainant answered that she did not have to explain

anything for emergency leave. The Supervisor instructed complainant

to provide information regarding the nature of the emergency and

acceptable documentation when she returned to work. On June 25, 1997,

the Supervisor stated that complainant gave her copies of pages from

a legal procedural manual with a paragraph highlighting the penalties

allowable for tampering with a witness. In a meeting with complainant

and the Personnel Specialist on June 25, 1997, the Supervisor gave

complainant written notice that the pages were not acceptable and that

unless complainant provided acceptable documentation the hours from 8:00

am to 1:00 pm on June 24, 1997, would be declared AWOL. The Supervisor

explained to complainant that AWOL was not the same as LWOP, and

could lead to disciplinary action.<4> The Supervisor stated that she

told complainant that a letter from her counselor stating that it was

absolutely necessary for complainant to take the whole day would suffice.

Complainant was given until June 31, 1997, to provide documentation.

On July 3, 1997, the Supervisor contacted complainant by phone and asked

if she had any documentation for the absence. Complainant replied that

she had given everything she had and would not provide anything else.

The Supervisor then informed complainant that because she did not

provide documentation, she would be placed on a seven-day suspension

for being AWOL.

The Personnel Specialist averred that complainant provided documentation

from her two representatives dated July 31, 1997, and August 3, 1997.

The Personnel Specialist stated that because the documents were received

after the deadline, which was extended to July 3, 1997, complainant

was declared AWOL for the period 8:00 am to 1:00 pm on June 24, 1997.

Complainant averred that she gave the Supervisor copies of all that was

mailed to her from the district court with the exception of two pages

listing attorneys who took Title VII cases. These she sent later.

She stated that when the Supervisor asked for more documentation she

did not know what to offer and the Supervisor did not stipulate what

she wanted.

The Supervisor averred that complainant was not prevented from

participating in the agency telephone survey. She stated that the

survey was received on July 22, 1997, and was due by August 2, 1997.

She stated that on July 26, 1997, she placed a letter on complainant's

desk with instructions that a co-worker would relieve her on July 28,

1997, so that she could participate in the telephone survey while on

the clock. Complainant notified her that she had already completed

the survey on her own time and expense.

The Supervisor has not issued discipline to any other employee.

Complainant did not list any comparison employees in her complainant.

In its final decision, the agency found that complainant failed to

establish a prima facie case of discrimination based on national

origin and age because she failed to name comparable employees who

received more favorable treatment under same or similar circumstances.

The agency found that complainant failed to establish a prima facie case

of discrimination based on reprisal because she failed to show a causal

connection between the agency's actions and her prior EEO activity.

The agency noted that complainant's prior EEO activity occurred nine

years prior to the contested action, and that none of the individuals

involved in the prior complaint were in a decision making position in

the present complaint. The agency found that, assuming arguendo, that

complainant established a prima facie case of discrimination, the agency

articulated legitimate, nondiscriminatory reasons for its actions.

In her appeal, complainant requested a hearing before an AJ.<5> She

argued that she did not know that her case was at the point of receiving

a final agency decision, and claimed that during the time period when

she was to request a hearing before an AJ, she was on leave for two

weeks and after that was preparing her tax returns.

FINDINGS AND ANALYSIS

EEOC Regulation 29 C.F.R. � 1614.108(f) provides that the agency

shall notify the complainant that the investigation is complete,

provide complainant with a copy of the investigative file, and notify

complainant that within 30 days of receipt of the investigative file,

the complainant has the right to request a hearing before an AJ or

may receive an immediate final decision from the agency. The record

indicates that complainant received a copy of the investigative file

and written notice of her right to request a hearing before an AJ but

failed to request a hearing within the required time. The Commission

finds that complainant may not now request a hearing.

Complainant's claims of disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). In general, 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. McDonnell Douglas, 411 U.S. at 802. In an

ADEA case, the ultimate burden remains on complainant to demonstrate,

by a preponderance of the evidence, that age was a determinative factor.

Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of

Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is

successful, the burden reverts back to the complainant to demonstrate by a

preponderance of the evidence that the agency's reasons were a pretext for

discrimination. At all times, complainant retains the burden of persuasion

and it is her obligation to show by a preponderance of the evidence

that the agency acted on the basis of a prohibited reason. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

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 a

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

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

After reviewing the record, the Commission finds that complainant

failed to demonstrate that the reasons articulated by the agency were

a pretext for discrimination. The agency stated that the Supervisor

approved complainant's first request for LWOP for her to attend the

June 24, 1997, meeting and for the 40 hours of leave to prepare for

the meeting, but could not find a replacement for complainant on short

notice when complainant requested additional hours for that date.

The agency issued the seven-day suspension because, despite repeated

requests and instructions on what documentation was acceptable,

complainant failed to provide adequate documentation to support her

request for emergency leave on June 24, 1997, within the specified time.

Complainant was not prevented from participating in the telephone survey.

The Supervisor placed the survey on complainant's desk on July 26, 1997,

with instructions that she would be relieved by a co-worker on July 28,

1997, so that she could participate.

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

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

protected activity, e.g., participated in a Title VII proceeding; 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 Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

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

80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,

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

The Commission finds that complainant establishes a prima facie case of

discrimination based on reprisal. The record indicates that complainant

was currently involved in an EEO civil action against the agency and her

Supervisor was aware of that activity. Complainant was disadvantaged

by agency actions contemporaneous with her protected activity, thus,

a causal connection is established based on closeness in time. We find

that complainant fails to show, however, that the agency's articulated

reasons for its actions are a pretext for discrimination. Complainant's

assertion that the agency acted in retaliation for her EEO activity is

not enough for her to prevail absent other evidence that a discriminatory

motive existed.

CONCLUSION

Accordingly, the decision of the agency is proper and 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

March 29, 2000

________________________ _____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

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 record indicates that complainant filed EEO complaint number

4-P-999-0044-8 on June 30, 1988 and complaint number 4-P-000-0050-8 on

August 9, 1988. Complainant filed a third complaint in March 1993.

3 The record does not clearly describe the nature of or reason for the

hearing. The record contains a Notice of Early Assessment Meeting for

Felicia M. Ruiz v. Marvin R. Runyon, Postmaster General, case number

97-0235-CV-W-BD, scheduled for June 24, 1997, at 3:30 pm. It appears

that the proceeding was a mediation hearing on a civil action filed by

complainant against the agency for a violation of EEO regulations.

4 The Supervisor averred that complainant responded defiantly by stating

that discipline didn't scare her and she didn't care what the Supervisor

did.

5 The agency issued complainant a Notice of Completed Investigation,

dated April 6, 1998, which included instruction that complainant could

request a hearing before an EEO Administrative Judge (AJ), or a final

agency decision without a hearing. Complainant did not submit a timely

request for a hearing or for a final agency decision. The record contains

a copy of the Postal Domestic Return Receipt indicating that complainant

received the Investigative Report on April 9, 1998.