01a04337
05-31-2001
Kathy L. Teal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathy L. Teal v. United States Postal Service
01A04337
05-31-01
.
Kathy L. Teal,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04337
Agency No. 4F-945-0113-99
DECISION
INTRODUCTION
On May 27, 2000, Kathy L. Teal (hereinafter referred to as complainant)
filed a timely appeal from the April 21, 2000, final decision of the
United States Postal Service (hereinafter referred to as the agency)
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race (white), sex, and reprisal for prior Title VII
activity when the agency did not assign her to the Fremont Main Post
Office until September 1999.
BACKGROUND
On April 22, 1999, complainant sought EEO counseling and, on July 17,
1999, filed a formal complaint alleging that on April 10, 1999, the
agency denied her request to be assigned to a vacant supervisory position
in charge of window service operations at the Fremont (California)
Main Office (Main).<1> Following an investigation, complainant was
notified of her right to elect a hearing before an EEOC Administrative
Judge or an immediate final decision. Complainant requested a decision,
and the agency issued its final agency decision (FAD) on April 21, 2000,
finding no discrimination.
At the time of her complaint, complainant was assigned as Supervisor,
Customer Services, at a sub-facility of Main. She sought assignment
to Main with responsibility for window services, a position which she
asserted had more responsibility and higher visibility than her current
position. Since 1997, the position had been occupied by a bargaining unit
employee, E1 (black), acting as a 204B supervisor. Complainant stated
that she had made her request to the Manager of Postal Operations for
all Fremont facilities (MPO) on several occasions. Complainant was
eventually assigned to Main in September 1999, to supervise window
service operations.
In its FAD, the agency found that complainant failed to demonstrate that
she was subjected to an adverse employment action or suffered a loss
or harm with regard to a term or condition of her employment, having
failed to demonstrate any entitlement to the position.<2> In addition,
the agency stated that, since the 1992 reorganization, all supervisors
were classified as �Supervisor, Customer Service,� performing duties
as assigned, and there was no established window service supervisory
position. The agency also noted that complainant was subsequently
assigned to Main. The agency concluded that, assuming she established
a prima facie case, complainant did not demonstrate that the agency's
reasons for its actions were a pretext for discrimination.
In her appeal, complainant contended that she sought a change in
the functional duties and location of her assignment, specifically,
to supervise window services at Main, and disagreed with the agency's
finding that she failed to show pretext. She acknowledged that she
had been assigned to the position in September 1999 but asserted that
she had requested the assignment on previous occasions and sought,
inter alia, compensatory damages. She also contended that the Report
of Investigation was incomplete and not impartial as required by the
Commission's regulations.
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For complainant to prevail, she must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must rebut complainant's inference
of discrimination by articulating a legitimate, nondiscriminatory
reason(s) for its action(s). Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); see U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Finally, the ultimate
burden returns to the complainant, who must persuade the fact finder by
a preponderance of the evidence that the reasons offered by the agency
were not the true reasons for its actions but rather were a pretext or
mask for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
For purposes of analysis, we assume without deciding that complainant
established a prima facie case on the bases of sex and race, and we move
to the final steps of the McDonnell Douglas analysis. See Aikens, supra.
Although the investigation report does not include a statement from
the MPO, we find that the record contains sufficient information upon
which to decide this matter. As to the agency's burden, we find that
it articulated legitimate, nondiscriminatory reasons for its actions,
that is, it exercised its appropriate management functions to assign
supervisors to positions and units as needed. We note that the incumbent
to the position sought by complainant at Main had been in the position
since 1997, without performance problems.
The ultimate burden of persuasion now returns to the complainant to
demonstrate by preponderant evidence that the reasons given by the
agency for its action(s) were not the true reasons and were pretextual,
that is, a sham or disguise for discrimination or based on illegal
considerations. The complainant must show that the agency's action
was more likely than not motivated by discrimination, that is, that the
action was influenced by legally impermissible criteria, i.e., race, sex,
or reprisal. Absent a showing that the agency's articulated reason was
used as a tool to discriminate against her, complainant cannot prevail.
Complainant contended that she was treated differently and less favorably
than E1, but she failed to explain how the agency's exercise of its
legitimate management functions demonstrated pretext. The record shows
that E1 was incumbent to the position at Main prior to complainant's
interest in the position, and she has not shown that she was otherwise
entitled to it. The record does not show, nor has complainant
demonstrated, that the agency's failure to assign complainant to a
position at Main was based on discriminatory considerations or animus.
We find therefore that complainant was not subjected to disparate
treatment discrimination based on race or sex.<3>
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996), citing, McDonnell Douglas,
411 U.S. at 802. Specifically, in a reprisal claim, in accord with the
burdens set forth in McDonnell Douglas, supra; Hochstadt v. Worcester
Foundation for Experimental Biology, supra; and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997),
complainant may establish a prima facie case of reprisal by showing that:
(1) she engaged in a protected activity; (2) the agency was aware of
her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). As stated above, we find
that the agency articulated legitimate, nondiscriminatory reasons for
its actions and that complainant did not demonstrate that the agency's
reasons were a pretext for its actions. We find, therefore, that the
agency did not discriminate against complainant in reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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
___05-31-01_______________
Date
1To the extent that complainant may believe that she was entitled to
the position pursuant to the Commission's finding of discrimination and
Order in EEOC Appeal No. 01960092 (June 19, 1998), we disagree. In that
decision, the agency was ordered, inter alia, to assign complainant to
a supervisory position at a location agreeable to her. Subsequently,
in a Decision on a Petition for Enforcement, the Commission found that,
because complainant had been assigned to the Fremont facility, the agency
had complied with that portion of the Order. EEOC Petition No. 04990026
(August 7, 2000). We note that complainant does not contend that her
assignment to the position at Main was in violation of the Commission's
Order.
2While the agency's position on whether the complaint states a claim
under the Commission's regulations is not without merit, because the
agency made a finding of no discrimination on her complaint, we consider
the merits of this matter.
3Complainant also complained about settlement discussions in 1997-1998,
which predate the events at issue herein. In addition, complainant is
advised that settlement discussions are deemed confidential in order to
protect the integrity of the settlement process.