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.