Kimberly G. Benton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
01990109 (E.E.O.C. Aug. 29, 2000)

01990109

08-29-2000

Kimberly G. Benton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kimberly G. Benton v. United States Postal Service

01990109

August 29, 2000

Kimberly G. Benton, )

Complainant, )

) Appeal No. 01990109

v. ) Agency No. 1H-361-1007-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision 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.<1> Accordingly, the appeal is accepted in accordance with 64

Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the basis of reprisal (prior EEO activity)<2> when the

Station Manager (Manager) gave her an official discussion off the clock

on November 9, 1995, concerning her attendance; issued her a Letter of

Demand (LOD) on December 19, 1995, for a stamp stock shortage;<3> gave

her pre-disciplinary hearings, one of which was off the clock, on January

3 and 24, 1996; issued her a Letter of Warning (LOW) for her irregular

attendance on January 10, 1996; delayed her seeking medical treatment by

an hour for an illness on January 17, 1996;<4> and reneged on a grievance

agreement to remove all discipline from her file on February 14, 1996.<5>

BACKGROUND

Complainant was a Distribution Window Clerk at the Carolyn Station Post

Office, Montgomery, Alabama. Complainant claimed that she was subjected

to an off-the-clock, official discussion for failure to be regular in

attendance by the Manager, with the Mark-Up Clerk Craft Director and

union steward in attendance. She averred that the Manager did not

cite any specific dates of her irregular attendance. Complainant stated

that she explained to the Manager that she had a serious health condition

and that her daughter had many serious health conditions, necessitating

use of leave. Complainant averred that Family Medical Leave Act (FMLA)

documents were on file at the agency. Complainant averred that the

Manager claimed that complainant was not available on November 13 and

14, 1995, to have her stock counted and thus, issued her the LOD for a

shortage of $371.85. Complainant stated that she used leave under the

FMLA on those days to attend to her daughter in the hospital.

The Manager averred that complainant was on-the-clock at the time of

the Official Discussion,<6> and that the pre-disciplinary discussions

were held in accordance with the National Agreement. He stated that

the LOW was issued after complainant failed to improve her irregular

attendance following the official discussion. He averred that he did

not refuse complainant's request to leave work because she was ill

and that all disciplinary action was removed from her file as per the

February 14, 1996, agreement. The Manager averred that he was unaware

of complainant's prior EEO activity. He also stated that he has issued

official discussions and LOWs to other employees.<7>

In its final decision, the agency found that complainant failed to

prove a prima facie case of discrimination based on reprisal because she

failed to establish the required causal connection between the actions

alleged and her prior EEO activity. The agency further found that the

Manager articulated legitimate, nondiscriminatory reasons which were

not a pretext for discrimination based on reprisal.

On appeal, complainant argues that the agency denied her the right to use

unscheduled leave to seek necessary medical treatment for herself and her

child for their physical disabilities<8> and serious health conditions.

She also argues that the agency violated the Family Medical Leave Act

and that such violation constitutes retaliation.<9>

FINDINGS AND ANALYSIS

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. Complainant has the initial burden

of establishing a prima facie case of discrimination. If complainant

meets this burden, the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Complainant must then prove, by a preponderance of the evidence, that

the legitimate reason articulated by the agency was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

This established order of analysis, in which the first step normally

consists of determining the existence of a prima facie case, need not

be followed in all cases. Where the agency articulates a legitimate,

nondiscriminatory reason for the actions at issue, the factual inquiry can

proceed directly to the third step of the McDonnell Douglas analysis,

that is, the ultimate issue of whether complainant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983). The burden returns

to complainant to demonstrate that the agency's reason was a pretext

for discrimination, that is, that the agency was more likely motivated

by discriminatory reasons. Burdine, 450 U.S. at 253.

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

allegation of reprisal, complainant 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 Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

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

80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,

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

The record indicates that complainant engaged in protected activity when

she contacted an EEO counselor on February 27, 1995, and filed an EEO

complaint on October 24, 1995. The Manager averred that he was unaware

of complainant's prior complaint. Thus, although the adverse actions,

which occurred between November 9, 1995, and February 14, 1996, occurred

within a close period of time of complainant's prior EEO activity, a

causal connection is not established because the Manager was not aware

of that activity.

Assuming, arguendo, that complainant established a prima facie case

of discrimination based on reprisal, we find that the agency stated

legitimate, nondiscriminatory reasons for the actions at issue; namely,

complainant's failure to be regular in attendance leading to an Official

Discussion, failure to improve her attendance leading to a LOW, and

absence during her stock count which led to the LOD. The Manager denies

delaying complainant in seeking medical treatment on January 17, 1996,

or reneging on a grievance agreement on February 14, 1996. There is no

record of when complainant requested and took leave on January 17, 1996.

The Manager also averred that he did not breach the grievance agreement

because all records of disciplinary action were removed from complainant's

file. The record indicates that the Manager issued similar discipline

to other employees, both with and without prior EEO activity. There is

no evidence that the Manager gave complainant the cited discipline

because of her prior EEO activity, and complainant failed to show that

the agency's articulated reasons were a pretext for discrimination.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the agency's decision.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 29, 2000

________________________ _______________________

Date Carlton M. Hadden, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ ________________________

Date Equal Employment Assistant

1On 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.

2Complainant contacted an EEO Counselor on February 27, 1995, and filed

an EEO complainant on October 24, 1995, regarding an Official Discussion

and Letter of Warning issued for her failure to be regular in attendance.

3The LOD was rescinded by mutual agreement between management and the

union on February 3, 1996.

4Complainant left work early on sick leave on January 17, 1996. The Leave

Request form does not indicate how many hours of leave complainant used

or what time she left work.

5A grievance settlement signed February 21, 1996, removed all discipline

from complainant's file. As of March 1, 1996, there was no discipline

in complainant's file.

6The Mark-up Clerk Craft Director averred that complainant had not yet

clocked on for duty when the Official Discussion took place.

7A matrix of comparison employees indicates that complainant and

comparison employees A and D have prior EEO activity. Complainant is

the only employee to receive a discussion off-the-clock and a LOD for an

audit shortage. Complainant and Comparison Employees A and E have each

received LOWs; complainant and Comparison Employee E for attendance and

Comparison Employee A for an accident.

8Complainant does not claim physical disability as a basis for

discrimination in this complaint.

9The Commission is not authorized to enforce the Family Medical Leave

Act and, therefore, makes no finding on whether the provisions of the

Act were violated.