Gwendolyn Jackson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01a00257 (E.E.O.C. Feb. 3, 2000)

01a00257

02-03-2000

Gwendolyn Jackson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid West Areas), Agency.


Gwendolyn Jackson v. United States Postal Service

01A00257

February 3, 2000

.

Gwendolyn Jackson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Great Lakes/Mid West Areas),

Agency.

Appeal No. 01A00257

Agency No. 4I-680-1062-95

Hearing No. 320-96-8107X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) 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.<1>

Complainant alleges she was discriminated against when on January 17,

1995, she was terminated from employment with the agency for failure

to meet the requirements of the position. The appeal is accepted in

accordance with EEOC Order No. 960.001. For the following reasons,

the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, a probationary Window Clerk, at

the agency's Omaha Post Office, Papillion, Nebraska facility, filed a

formal EEO complaint with the agency on March 20, 1995, alleging that

the agency had discriminated against her as referenced above.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). Concluding there were no

material facts in dispute, the AJ issued a decision without a hearing,

finding no discrimination. Specifically, the AJ concluded that complainant

failed to establish a prima facie case of discrimination on any bases

because she failed to demonstrate that similarly situated employees

not in her protected classes were treated more favorably under similar

circumstances. Although complainant cited other comparative employee

who she alleged were not terminated and had similar or worse attendance

records, the AJ found complainant failed to rebut the supervisor's

testimony that he did not know the individuals cited by complainant.

Assuming, arguendo, that complainant established an inference of

discrimination, the AJ found that the agency articulated a legitimate,

nondiscriminatory reason for its actions. Namely, the AJ found that the

agency discharged complainant due to the three absences she incurred

during the beginning of her probationary period. The AJ also found

that complainant failed to establish that this reason was a pretext

for discrimination. Although the AJ noted the termination may have been

unduly harsh, there was no evidence that the agency's action was based

on a discriminatory animus towards any of complainant's protected bases.

On August 26, 1999, the agency issued a final decision that concurred

with the AJ's decision. Complainant makes no new contentions on appeal,

and the agency requests that we affirm its final decision.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary

Judgement is proper when "material facts are not in genuine dispute." 29

C.F.R. � 1614.109(g). Only a dispute over facts that are truly material

to the outcome of the case should preclude summary judgement. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes over

facts that might affect the outcome of the suit under the governing law,

and not irrelevant or unnecessary disputes, will preclude the entry of

summary judgement). For example, when a complainant is unable to set forth

facts necessary to establish one essential element of a prima facie case,

a dispute over facts necessary to prove another element of the case would

not be material to the outcome. Celotex v. Catrett, 477 U.S. 317, 322-23

(1986). EEOC MD-110, at 7-15 November 9, 1999. The Commission will apply

a de novo standard of review when it review's an AJ's decision to issue

a decision without a hearing pursuant to 29 C.F.R. � 1614.109(g). See,

EEOC MD-110, at 9-16.

As the complaint constitutes a claim of disparate treatment, the AJ

properly analyzed it under the three-tiered analytical framework outlined

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department

of Community Affairs v. Burdine, 450 U.S. 248 (1981). Applying this legal

standard to the complaint, the Commission finds that complainant failed to

establish an inference of discrimination in that she failed to establish

that individuals outside of her protected class were not terminated,

despite their having attendance records similar to complainant's.

We also agree with the AJ that assuming complainant did establish an

inference of discrimination, she failed to establish that the agency's

reason for its action was a pretext for discrimination. Complainant failed

to produce any evidence that she received harsher treatment because

of a protected bases. Therefore, after a careful review of the record,

and arguments and evidence not specifically addressed in this decision,

we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 3, 2000

__________________

Date

1On 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.