Jean B. Ferguson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 21, 1999
01974433 (E.E.O.C. Sep. 21, 1999)

01974433

09-21-1999

Jean B. Ferguson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jean B. Ferguson v. United States Postal Service

01974433

September 21, 1999

Jean B. Ferguson, )

Appellant, )

) Appeal No. 01974433

v. ) Agency No. 4-H-327-1097-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

Appellant timely initiated an appeal of a final agency decision

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity) in violation of

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

seq. The appeal is accepted in accordance with EEOC Order No. 960.001.

BACKGROUND

The record reveals that appellant filed a formal EEO complaint on May

2, 1994, alleging discrimination on the above-reference bases when:

(1) on January 1, 1994, her supervisor attempted to force her to work

the New Year's Day holiday; (2) beginning January 15, 1994, she was

not allowed to work any more overtime on her nonscheduled days; (3)

on January 17, 1994, her supervisor attempted to force her to work

during the Martin Luther King holiday; (4) on January 24, 1994, she

was treated as the "bad guy" by postal inspectors when they questioned

her about a report that she had submitted to the Office of Safety; (5)

on January 31, 1994, she was not offered choice vacation time nor was

she given the proper form for choice vacation time; (6) on February 17,

1994, her supervisor solicited a customer complaint against her; and

(7) on February 24, 1994, the Postal Inspectors staged a plot against

her to make her $600 short in her financial accountability and make her

life miserable. The agency accepted the complaint for processing and,

at the conclusion of the investigation, issued a final decision finding

no discrimination. Appellant then filed the instant appeal.

The central events in this case occurred between December 31, 1993 and

February 24, 1994. Appellant alleges that on December 31, 1993 her

supervisor, attempted to force her to work on New Year's Day.<1> The

employees' union intervened and informed the supervisor that he could

not force appellant to work the holiday if there were employees junior

to her. According to appellant's supervisor, the Downtown Station,

the office in which appellant worked, was going to be open for business

on December 31, 1993 and, because he had received no volunteers to

work on that day, the two junior employees, one of whom was appellant,

were scheduled for coverage. After the Postmaster brought in two relief

clerks from another station, appellant was no longer scheduled to work the

holiday. On January 15, 1994, appellant was not allowed to work overtime.

Per station policy, overtime was done by rotation and, on this particular

day, it was appellant's turn to work overtime. Instead, her supervisor

allowed a casual (transitional) employee to work. Appellant alleges that

two days later, on January 17, 1994, her supervisor attempted to force

her to work on Martin Luther King, Jr. Day. Regarding this holiday

work requirement, she never received anything in writing, nor did she

work that day. Appellant further alleges that, on January 24, 1994,

she was asked intimidating and accusatory questions by postal inspectors

during an agency investigation regarding a report that she had submitted

to the Office of Safety. Specifically, appellant's report stated that

"all postal employees should be furnished with guns and weapons." On

January 31, 1994, appellant was not given a choice vacation time form.

Instead, she submitted Form 3971, the form for regular vacation time,

requesting two weeks and it was approved. However, if she had been given

the form for choice vacation time, she could have taken three weeks.

Appellant also alleges that her supervisor solicited a customer complaint

against her. She believes that this complaint was solicited because

the complaint card had her last name on it and there was no way that

the customer could have known her last name unless her (appellant's)

supervisor revealed it. Finally, on February 24, 1994, appellant was

interviewed by postal investigators concerning a customer, sent in by

the investigators themselves, attempting to cash an altered money order.

According to appellant, when being questioned about the case, she was

virtually accused of wrongdoing. She states that the investigators made

the following statements, "I'm going to make your life miserable," and

"you are not under arrest yet."

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonald Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). First, appellant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. McDonnell Douglas, 411 U.S. at 802. Next, the agency must

articulate a legitimate, nondiscriminatory reason(s) for its actions.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). If the agency is successful, then the appellant must prove,

by a preponderance of the evidence, that the legitimate reason proffered

by the agency was a pretext for discrimination. Id. at 256.

Sex

Although the initial inquiry of discrimination in a discrimination case

usually focuses on whether the appellant 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 appellant

has established a prima facie case to whether s/he has demonstrated by

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

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983).

The Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Regarding allegation (1),

the agency contends that appellant volunteered to work on New Year's Day.

As proof, the agency submitted a copy of the volunteer sign-in sheet

signed by appellant indicating that she was willing to work that day.

However, because the Postmaster brought in two relief clerks from another

station, appellant was not required to work during the holiday. As for

allegation (2), the agency asserts that appellant was not allowed to

work overtime on her nonscheduled days because, if there was work to

be done on those days, it was assigned to casual employees, if they

were available, on straight time, rather than full time employees on

overtime. The agency further contends that full time employees were not

guaranteed overtime, and if and when they were needed for overtime, the

two employees on the overtime list rotated the days. Also, the agency

provides documents illustrating that appellant's male counterpart was

also denied overtime. With regards to allegation (3), the agency denies

attempting to force appellant to work on Martin Luther King Day. In fact,

according to the agency, no full time employees in appellant's office,

including appellant, worked that day. Appellant acknowledges that,

while co-workers implied that she would be working that day, she never

received any official word from her supervisor regarding the matter.

The agency denies treating appellant like the "bad guy." According to

the agency, an investigation was conducted regarding appellant's report

to the Office of Safety that all postal employees should be furnished guns

and bullets. The Office of Safety was very concerned about the nature of

appellant's report, coupled with the fact that she had compromised the

security of the Postal Service by supplying the combination to the two

safes located in her facility, and requested that she be interviewed by

postal investigators. Regarding allegation (5), the agency asserts that

the vacation forms were forwarded to the station (downtown station) in

which appellant works, however, for some reason, they never arrived; thus,

no one in appellant's station received the forms. Upon learning that the

aforementioned forms never reached their proper destination, the alleged

discriminating official delivered the documents himself and, upon doing

so, the downtown employees signed up according to seniority. The agency

denies soliciting a customer complaint against appellant. According to

the alleged discriminating official, a customer called complaining about

the service she had received from appellant. The alleged discriminating

official states that he informed the customer that such complaints,

per Postal Service procedure, would have to be writing. He then agreed

to send her a customer service card. No action was ever taken against

appellant as a result because the customer never returned the card.

The agency denies having staged a plot against appellant to make her

$600 short in her financial accountability. While a phony customer, at

the request of the investigative unit, did approach appellant attempting

to cash an altered $600 money order, the same phony customer approached

other employees as well. All of the clerks approached by the customer

were interviewed by investigators and appellant was the only one that

refused to cooperate.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, appellant now bears the burden

of establishing that the agency's stated reasons are merely a pretext

for discrimination. Shapiro v. Social Security Administration, EEOC

Request No. 05960403 (December 6, 1996). Appellant can do this by

showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

We find that appellant has failed to meet this burden. Regarding each

of the seven allegations, appellant offers no evidence refuting the

agency's reasons for it actions. As such, we find that she failed to

prove, by a preponderance of the evidence, that the reasons articulated

by the agency were a pretext for discrimination.

Reprisal

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

allegation of reprisal, appellant 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 Found. for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545

F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,

86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,

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

Assuming that appellant was successful in establishing a prima facie case

of reprisal, we hold that she has failed to submit evidence which proves,

by a preponderance of the evidence, that the reasons given by the agency

for its actions, discussed supra, were a pretext for discrimination.

CONCLUSION

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (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:

Sept. 21, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Appellant states that her nonscheduled days are Saturday and Sunday.

The holiday, January 1, 1994, was on a Saturday; therefore, if she worked

the holiday, she would have worked on Friday, December 31, 1993.