01a00583
05-16-2000
Katrina Merriex, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Katrina Merriex, )
Complainant, )
) Appeal No. 01A00583
v. ) Agency No. 4H-320-2716-93
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
basis of race (African American), 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 May 14,
1993, she was terminated from employment. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the FAD.
The record reveals that during the relevant time, complainant was employed
as a Causal Clerk, at the agency's Gainesville General Mail Facility,
Gainesville, FL facility. Complainant was hired by the agency on May 3,
1993, and was terminated on May 14, 1993. Complainant alleged in her
complaint that she was terminated after she requested transfer from
Customer Services to Processing & Distribution.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a complaint on October 7, 1993. At the
conclusion of the investigation, complainant failed to request a hearing,
and thus, the agency issued a final decision.
The agency concluded that complainant failed to prove that her
race, as opposed to her actions, was the reason for her termination.
Specifically, the agency found that complainant repeatedly requested
more hours and a transfer to Processing & Distribution. The supervisor
testified that complainant requested this transfer because her friends
received more hours of work in the Processing & Distribution Section.
The supervisor testified that complainant's requests continued even after
she explained to complainant that she would receive more hours once she
became more familiar with the Customer Services Section, and that there
were no casual vacancies in Processing & Distribution. The supervisor
recommended complainant's termination when complainant refused to change
her attitude, even after she explained the above to complainant.
On appeal, complainant contends that she did not have an attitude problem,
and that she was terminated when she requested more hours. She contends
that an individual in her section had offensive KKK drawings on postal
property. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission finds that complainant
failed to present evidence that proved more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
The preponderance of the evidence supports the agency's finding that
complainant repeatedly requested more hours and a transfer, despite her
having been explained that she would get more hours once she became
more familiar with the operations of her section. The supervisor
testified in her affidavit that she explained to complainant that as
a casual employee, she was not guaranteed eight hours of work per day.
Complainant has not provided any evidence that as a casual employee, she
was guaranteed eight hours of work per day. The supervisor's testimony in
her affidavit expresses frustration with complainant's repeated requests
for more hours and a transfer to the section where her friends worked,
despite her having been a brand new employee.
In reaching this conclusion, we note that a letter attached to her EEO
Counselor's Report indicates that complainant also informed management
that an individual in her section had offensive KKK material on
postal property. However, the preponderance of the evidence does
not support complainant's assertion that this was the basis for her
transfer request. Rather, the attachment to the EEO Counselor's Report
begins with complainant's charge that she was denied eight hours of work.
Furthermore, complainant requested more hours from her supervisor prior
to informing the supervisor about the offensive material. In sum, we
find complainant failed to produce sufficient persuasive evidence of a
connection between her transfer request and the offensive material.<2>
Therefore, after a careful review of the record, including complainant'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 (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:
May 16, 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:
_________________________ ________________________
Equal Employment Assistant 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.
2Although we do not find discrimination in the context of the removal
action, the agency is reminded of its obligation to provide a work
environment free of discriminatory harassment. The agency is advised to
investigate the claim that racist materials are located on its premises,
and immediately remove such items if they are in fact found.