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.