01a00114
03-31-2000
Jacqueline Anderson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jacqueline Anderson, )
Complainant, )
) Appeal No. 01A00114
v. ) Agency No. 4D-250-0078-98
) Hearing No. 170-99-8003X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of sex (female), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the agency properly found that complainant
failed to show by preponderant evidence that the agency discriminated
against her on the basis of sex when on February 13, 1998, she was
issued a notice of removal for unsatisfactory performance/failure to
properly perform the duties of her position.
BACKGROUND
The record reveals that complainant was a Letter Carrier at the
agency's Parkersburg, West Virginia Post Office. On September 17,
1997, complainant was out delivering her route when her supervisor (the
Supervisor) reviewed the stack of mail which was bundled for disposal
as Undeliverable Bulk Business Mail (UBBM) and No Apparent Value (NOV).
Upon review of the bundle, the Supervisor found several pieces of mail
which she considered to be deliverable but were endorsed by complainant
for disposal. The Supervisor contacted her managers who advised her
to terminate complainant for the infraction but to also do what she
felt was fit. Later that day, the Supervisor discussed the situation
with complainant and advised her that she could be terminated for the
infraction. The Supervisor conducted a second inspection of bundles on
December 10, 1997. This time, the Supervisor found eighty-one (81) pieces
of mail that were bundled and endorsed for disposal which she believed
included deliverable mail. The following day, the Supervisor spoke with
complainant and asked her to review the bundle of mail. Complainant did
so and determined that thirty-six (36) of the eighty-one (81) pieces of
mail were deliverable. Based on complainant's actions on September 17,
1997, and December 10, 1997, the agency placed complainant on off-duty
status pending disciplinary action. Upon review of complainant's actions,
the agency determined that she should be terminated and served her a
Notice of Removal for unsatisfactory performance/failure to properly
perform the duties of her position on February 13, 1998. The agency
terminated complainant on March 2, 1998. Believing she was a victim of
discrimination, complainant filed a formal EEO complaint with the agency
on March 19, 1998, alleging that the agency had discriminated against
her when she received the notice of removal.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). A hearing was held on July 26, 1999. Subsequently, on August
16, 1999, the AJ issued a Bench Decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of sex discrimination because she failed to demonstrate that
similarly situated employees not in her protected class were treated
differently under similar circumstances. Particularly, the AJ found
that the complainant failed to show that the comparatives committed the
same offense as severely as she had committed on two occasions.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the agency
argued that complainant bundled several pieces of deliverable mail for
disposal on two occasions which was more severe than any other carrier.
The agency also argued that the appropriate punishment for these
deliberate and severe actions was removal.
The AJ then found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. Complainant attempted to show that she did
not designate the bundle for disposal and that other mail carriers were
not punished for the same infraction. The AJ found that complainant
failed to support her claim that she did not intentionally bundle
the mail for disposal. Further, the AJ found that those other mail
carriers who committed similar errors would only have one (1) to five
(5) pieces of deliverable mail in their disposable bundles, while in
this case, complainant had thirty-six (36) pieces of deliverable mail
endorsed for disposal. Accordingly, the AJ found that complainant did
not establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination.
On September 1, 1999, the agency issued its final decision. In its
FAD, the agency concurred with the AJ's Bench Decision that complainant
failed to support her claim of discrimination based on sex. This appeal
followed.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's Bench Decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's sex. We discern no basis
to disturb the AJ's Bench Decision.
CONCLUSION
Therefore, after a careful review of the record, we affirm the agency's
final decision.
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 31, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 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.