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.