Kim Wortham, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 1, 2001
01a10020 (E.E.O.C. Feb. 1, 2001)

01a10020

02-01-2001

Kim Wortham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kim Wortham v. United States Postal Service

01A10020

February 1, 2001

.

Kim Wortham,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A10020

Agency No. 4F-907-0013-97

Hearing No. 340-97-3667X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final order

concerning her formal complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the agency's final

order is AFFIRMED.

ISSUE PRESENTED

The issue presented herein is whether complainant has established,

by preponderant evidence, that she was discriminated against on the

bases of race (Black) and sex (female) when she was issued a seven-day

suspension for Unsatisfactory Work Performance - Failure to Adhere to

Safe Driving Practices; and Unsatisfactory Work Performance - Failure

to Report an Accident.

BACKGROUND

Complainant, employed by the agency as a Mail Carrier (PS-05) at the

time of the alleged discriminatory event, filed a formal complaint on

November 5, 1996, in which she alleged what has been identified as the

issue presented. The agency accepted the complaint for investigation.

At the conclusion of the investigation, complainant received a copy of

the investigative report and was informed of her right to either request

a hearing before an EEOC Administrative Judge (AJ) or an immediate final

decision from the agency without a hearing. Complainant requested the

former. After gathering evidence and information at the Prehearing

Conference, the AJ determined that there were no genuine issues of

material fact, and therefore decided to issue a decision without a

hearing.<2> That decision ruled that complainant failed to establish

a prima facie case of discrimination, and that she failed to provide

information indicating that the agency's stated reasons for its action

was a pretext for discrimination. The agency's final order implemented

the AJ's decision. This appeal followed.

Information in the evidentiary file indicates that, in addition to her

duties as a Mail Carrier, complainant was also charged with providing

on-the-job-training to new employees. On August 16, 1996, complainant,

while training an employee, was traveling in her vehicle in the course of

delivering mail. On one particular street, a trash truck was parked on

the left side curb while its driver was collecting trash. Several cars

were parked on the right side curb of the street. Complainant attempted

to maneuver her vehicle between the trash truck and one of the cars.

Consequently, she was unable to obtain the proper clearance and her left

outside mirror collided with the right outside mirror of the trash truck.

This collision caused complainant's mirror to break. When complainant

returned to the Post Office, she did not immediately report the accident

to the proper officials. Instead, she waited until the next day.

As a result, complainant was issued a seven-day suspension.<3>

ANALYSIS AND FINDINGS

Summary Judgment Ruling

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of

the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,

105 (1st Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render

a determination as to the truth of the matter, but only to determine

whether there exists a genuine factual dispute. Anderson, 477 U.S. at

248-49. After examining the testimonies of the various witnesses and

other evidence provided by the parties, we find that no genuine issue

of material fact exists in this case; and therefore the AJ's decision

to issue a ruling without a hearing was appropriate.

Race and Sex Discrimination

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. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant 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 complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant 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 complainant has

established a prima facie case to whether she 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). In this case, we find that the agency has stated a legitimate,

nondiscriminatory reason for its action. Specifically, the agency stated

that complainant was suspended for seven days because her negligence

caused an accident which she failed to report in a timely manner.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory event, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant 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)). In this case,

complainant has failed to meet that burden. In attempting to prove

that the agency's stated reason was a pretext for discrimination,

complainant alleged that she did not report her accident immediately

because, when she returned to the Post Office, she could not find any

of the officials to whom she was supposed to report such information.

But agency policy clearly dictates that:

[o]perators involved in accidents. . . shall remain at the scene

[of the accident] until they have. . . notified the Postmaster or his

designee. . . [and]. . . completed [Form] SF 91, Operator's Report of

Motor Vehicle Accident. This report may be prepared at the scene of the

accident or immediately thereafter and must be submitted, before going

off duty on the day of the accident, to the employee's superior.

Complainant also alleged that two other employees (one a Black male, the

other a White male) were not given seven-day suspensions for engaging

in similar conduct. Information in the file, however, indicates that

those two employees were given seven-day suspensions for their conduct.

Based on the forgoing, we find that complainant has failed to show

that the agency legitimate, nondiscriminatory reason was a pretext for

discrimination.

CONCLUSION

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 hereby AFFIRM the

agency's final order.

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

February 1, 2001

__________________

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. The regulations, as amended, may be found at the Commission's

website at www.eeoc.gov.

2In a statement filed with her appeal, complainant stated that she was

not notified of a second Prehearing Conference that may have been held.

Complainant's belief that there may have been a second Prehearing

Conference appears to be based on a statement in the AJ's decision which

reads: �A second Notice of Prehearing Conference and Order were sent on

February 25, 2000.� It appears that complainant misinterpreted the AJ's

statement. The second Notice of Prehearing Conference and Order does

not indicate that there was a second Prehearing Conference. Instead,

it indicates that the parties were notified, for the second time,

of the �first� Prehearing Conference. We note that complainant does

not contend that she was unaware of the �first� Prehearing Conference.

We also note that the file does not contain any evidence that a second

Prehearing Conference was held.

3Complainant filed a union grievance regarding the seven-day suspension.

Her union representative requested a reduction of the suspension to two

days, one as a non-scheduled day. The agency and the union agreed that

the seven-day suspension would be reduced to two days, each to be served

in two separate pay periods.