01975801
09-02-1999
Gail E. Miller, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Gail E. Miller, )
Appellant, )
) Appeal No. 01975801
v. ) Agency No. 1C081100596
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American), color (black), and sex (female), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges she was discriminated
against when she was denied reinstatement in June of 1995. The appeal
is accepted in accordance with EEOC Order No. 960.001.
BACKGROUND
Appellant was formerly employed as a GS-6 Distribution Clerk, Machine
(MPLSM) at the South Jersey Post Office. She began this job on July 5,
1986, and was terminated on July 19, 1991, for excessive absences and
tardiness, after she failed to adhere to a last chance settlement offer.
In 1995, appellant decided to apply for reinstatement with the agency.
Appellant alleged that she wrote to �all the Postmasters and Plant
Managers� asking for reinstatement and received a positive response from
the Acting Postmaster in Marlton, New Jersey. Appellant was told that
approval for her reinstatement must be obtained from the South Jersey Post
Office Manager of Human Resources (hereinafter MHR). Appellant alleged
that in her initial meeting with MHR (white male), she was told that she
would be given a job as a casual and depending on her absences and work
performance, she may be reinstated to her previous GS-6 position.
On June 27, 1995, appellant's attorney received a letter from MHR which
stated that appellant would not be reinstated because it was the policy
of the agency to deny reinstatement to any employee previously removed
for cause.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on November 9, 1995.
Therein, she alleged that she was the victim of unlawful employment
discrimination on the bases of race (African-American), color (black)
and sex (female) when she was denied reinstatement, despite the fact that
others who had been terminated for absences and tardiness were reinstated.
The agency issued a final agency decision on June 12, 1997, finding that
appellant had not been discriminated against. The agency argued that
appellant failed to present any evidence indicating her race, color,
and/or sex were factors in the denial of her request for reinstatement.
The agency also noted that it had a legitimate reason for denying
appellant's request, namely, that when appellant did work for the
agency her performance was unsatisfactory due to excessive absences
and tardiness. The agency therefore found that appellant had failed in
her ultimate burden of proving intentional discrimination. It is from
this decision that appellant now appeals.
CONTENTIONS ON APPEAL
On appeal, appellant alleges that she made a timely request for a hearing
before an Administrative Judge which the agency ignored. She also
describes two new incidents. Appellant notes that her name was taken
off the agency's hire register without her knowledge. The description
of this event in appellant's appeal letter is incomplete. However,
the record contains a letter from appellant to the Plant Manager of the
Bellmawr, New Jersey Post Office dated April 25, 1996, which appears to
be connected to this incident. Appellant noted that when she called
Bellmawr to inquire about her hiring status she was informed that an
�object� was placed on her name on the hiring register at the Bellmawr
Post Office without her knowledge.
Appellant also describes a more recent event. She notes that she moved
to Texas and, after contacting the Human Resource Manager at an unnamed
Texas Post Office, was given a non-career position on November 9, 1996.
She alleges that on March 29, 1996, she became a career employee, but
was removed on June 26, 1997, due to falsification of her application.
Appellant indicates that she has filed a complaint based on retaliation
due to this event.<1>
The agency raises no new contentions on appeal, and asks that a finding
of no discrimination be rendered.
ANALYSIS AND FINDINGS
We first address appellant's contention that she timely requested
a hearing before an Administrative Judge. According to Commission
regulations, a document shall be deemed timely if it is delivered in
person or postmarked before the expiration of the applicable filing
period, or, in the absence of a legible postmark, if it is received by
mail within five days of the expiration of the applicable filing period.
29 C.F.R. � 1614.604(b).
In the instant case, the record contains a letter to appellant,
dated October 19, 1996, enclosing the investigative file and noting
that appellant could request a hearing before an Administrative Judge
by notifying the Senior EEO Complaints Processing Specialist, Akron
Customer Service District,<2> within 30 calendar days of her receipt of
the investigative file. Though the record does not contain a certified
mail receipt to prove when appellant received this letter, appellant
indicated that she received it on October 22, 1996. In order to timely
request a hearing, therefore, appellant would have had to have done so
by November 21, 1996.
To establish that she made a timely request, appellant relies on a
November 8, 1996 letter to the EEO Investigator, requesting a hearing.
Attached to this letter are two certified mail receipts, one addressed
to an Administrative Judge, received on December 5, 1996, and one
addressed to the Office of Compliance and Appeals, received February
27, 1997. Neither of these qualify as a timely request in that neither
is addressed to the correct individual and neither establishes that a
hearing request was postmarked by November 21, 1996. Since appellant
did not provide proof of a timely postmark for her hearing request,
her request could only be timely if the agency received such within
five days of the expiration date. In the FAD, the agency noted that
appellant requested a decision without a hearing. Although there is
nothing in the record to establish this, the agency clearly asserted by
this statement that it did not receive a hearing request from appellant.
Therefore, we find that appellant's hearing request is untimely.
In regard to appellant's allegation raised on appeal concerning the
removal of her name from the hiring register at the Bellmawr Post Office,
we note that appellant's statement concerning this event is unclear.
Based on a review of the record, we believe that this allegation was
not raised in counseling or in appellant's complaint. While we are
not certain that we correctly understand to what conduct appellant is
referring, we advise appellant that if she wishes to pursue, though
the EEO process, the additional allegation raised for the first time on
appeal, she shall initiate contact with an EEO counselor within fifteen
days after she receives this decision. The Commission advises the agency
that if appellant seeks EEO counseling regarding the new allegation
within the above fifteen day period, the date appellant filed the appeal
statement in which she raised this allegation with agency shall be deemed
to be the date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters, in which case the earlier date would
serve as the EEO Counselor contact date. Cf. Qatsha v. Department of
the Navy, EEOC Request No. 05970201 (January 16, 1998).
Turning now to the subject of the FAD, appellant's complaint presents the
issue of whether the agency subjected her to disparate treatment on the
bases of her race, color and/or sex. The allocation of burdens and order
of presentation of proof in a Title VII case alleging disparate treatment
discrimination is a three step procedure: appellant has the initial burden
of proving, by a preponderance of the evidence, a prima facie case of
discrimination; the burden then shifts to the employer to articulate
some legitimate nondiscriminatory reason for its challenged action; and
appellant must then prove, by a preponderance of the evidence, that the
legitimate reasons offered by the employer were not its true reasons,
but were a pretext for discrimination. McDonnell Douglas v. Green,
411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
To establish a prima facie case of discrimination, appellant must
establish that similarly situated individuals not in her protected
classes were treated differently under similar circumstances, or present
other evidence which raises an inference of discrimination. See, e.g.,
Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Here, appellant presented a list of five agency employees whom she alleged
were terminated for absences and tardiness and then reinstated by the
South Jersey Post Office. This list included C1 (Caucasian, white,
female), C2 (African-American, black, male), C3 (African-American,
black, female), C4 (Caucasian, white, male), and C5 (male of unknown
race and color). In response, the agency provided MHR's affidavit in
which he indicated that it has been the policy of the South Jersey
Post Office since he became the Manager of Human Resources (date not
provided) to deny reinstatement to any employee removed for cause
and that he has never approved any employee for reinstatement who was
removed for cause. This satisfies the agency's burden of articulating
a legitimate non-discriminatory reason for its action.
Appellant must now prove, by a preponderance of the evidence, that MHR's
articulated reason for refusing to reinstate her is not the true reason
for the agency's action, but only a pretext for discrimination.
The agency provided personnel records for C1, C2, C4 and C5.<3> The
Commission finds that these personnel records neither support nor refute
MHR's assertions. The records indicate, for example, that C2 and C4
were neither terminated nor requested reinstatement during certain
years. However, the record does not contain the personnel records
for all of the years in which C2 and C4 worked for the agency, making
it impossible to determine if their careers included termination for
cause and reinstatement at some point during MHR's tenure as the Manager
of Human Resources.<4> Despite the existence of this possibility, it
remains appellant's burden to establish that MHR's articulated reason
for denying her reinstatement is a pretext for discrimination and she
has failed to sustain this burden.
Accordingly, the agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
9/02/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 As the record indicates that appellant has begun the EEO process on
this issue, it will not be addressed in this decision.
2 The complete address was also provided.
3 The agency indicated that it no longer had the personnel records of
C3 and that she is no longer employed by the agency. Moreover, we note
that C3 is within appellant's protected groups and is therefore not a
valid comparative.
4 Again, we note that the years in which MHR has held this position
are not provided.