01980375
02-11-2000
Linda Cormier, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.
Linda Cormier v. United States Postal Service
01980375
February 11, 2000
Linda Cormier, )
Complainant, )
) Appeal No. 01980375
v. ) Agency No. 4E800113496
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western), )
Agency. )
)
DECISION
Linda Cormier (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the basis of sex (female/pregnancy), 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:
(1) she was denied a transfer to the Castle Rock Post Office; and (2)
she was denied acting supervisory training. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-05 Distribution/Window clerk, at the agency's Evergreen
Post Office, in Colorado. Complainant alleged that she approached the
Postmaster of the Evergreen Office (PM: male) to discuss the possibility
of transferring to another office and that he told her there was a
possible opening in Castle Rock. When complainant expressed interest in
this position, PM said he would call the Officer-in-Charge (OIC: male)
at the Castle Rock facility and inform him of complainant's interest.
Complainant alleged that she overheard the conversation between OIC and
PM and that after telling OIC that complainant was a hard worker, PM
mentioned that her one downfall was that she was pregnant. Complainant
later learned, on February 5, 1996, that a female employee from another
facility had been granted a transfer to the Castle Rock facility,
filling the available position.
Believing she was the victim of sex (pregnancy) discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint on
April 27, 1996.<2> At the conclusion of the investigation, the agency sent
complainant a copy of the file, with appeal rights attached. The record
establishes that complainant received this information on April 1, 1997
and, by letter postmarked May 10, 1997, requested a hearing before an
administrative judge. The agency notified complainant that her hearing
request was untimely and, on September 15, 1997, issued a FAD.
The FAD concluded that complainant failed to establish a prima facie case
of sex discrimination because she presented no evidence that similarly
situated individuals not in her protected class were treated differently
under similar circumstances. The FAD went on to find that management
had articulated a legitimate non-discriminatory reason for its actions.
Specifically, OIC noted that he denied complainant's request because he
approved a transfer for another female employee from a different office.
He testified that while complainant was given a very good evaluation, the
other individual was given an outstanding evaluation. The FAD concluded
that complainant's claim of discrimination was without merit. The FAD
made no mention of complainant's claim that she was denied training,
but merely concluded that complainant failed to establish that the agency
was motivated by discrimination in denying her transfer.
CONTENTIONS ON APPEAL
On appeal, complainant contends that after filing her appeal, she had a
conversation with her current supervisor in which he said that OIC told
him that OIC was not going to approve complainant's transfer because
of her pregnancy. Complainant also submits her letter (undated) to the
Castle Rock Post Office requesting a transfer, and two letters requesting
a transfer from the selected transferee. Complainant claims that her
request was submitted months earlier then that of the selected individual.
The agency makes no response to these contentions and requests that we
affirm its FAD.
FINDINGS AND ANALYSIS
As an initial matter, we note that a complainant has a right to request
a hearing before an administrative judge (AJ) within 30 days of receipt
of the investigative file. See 64 Fed. Reg. 37,644, 37,657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108(f)).
Here, complainant received the file on April 1, 1997, yet did not
request a hearing until May 10, 1997, 9 days outside the time period.
The agency was correct, therefore, in issuing a FAD.
Claims of discrimination based on pregnancy must be evaluated under the
Pregnancy Discrimination Act (PDA), 42 U.S.C. � 2000e(k). The PDA,
an amendment to Title VII of the Civil Rights Act of 1964, prohibits
discrimination on the basis of pregnancy, childbirth, or related medical
conditions. See Mancuso v. Federal Deposit Insurance Corporation, EEOC
Appeal No. 01989603 (August 26, 1998). The Appendix to 29 C.F.R. �
1604 states: "The basic principle of the [Pregnancy Discrimination
Act] is that women affected by pregnancy and related conditions must
be treated the same as other applicants and employees on the basis of
their ability or inability to work. A woman is therefore protected
against such practices as being fired, or refused a job or promotion
merely because she is pregnant."
Claims brought under the PDA are examined using traditional disparate
treatment analysis. In the absence of direct evidence of discrimination,
the allocation of burdens and order of presentation of proof in a Title
VII case is a three-step process. McDonnell-Douglas Corp v. Green,
411 U.S. 792 (1973).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on sex
(pregnancy) is established where complainant has produced sufficient
evidence to show that (1) she is a member of a protected class; (2)
she was subjected to an adverse employment action; and (3) similarly
situated employees outside her protected class were treated more
favorably in like circumstances. Complainant may also meet this burden
by presenting other evidence which raises an inference of discrimination.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original).
Here, the agency found that because complainant failed to establish that
she was treated differently than similarly situated individuals not within
her protected class, she failed to establish a prima facie case. It is
well established, however, that while comparative evidence is usually used
to establish disparate treatment, complainant need only set forth some
evidence or facts from which, if otherwise unexplained, an inference of
discrimination can be drawn. See Scura v. United States Postal Service,
EEOC Request No. 05965021 (October 8, 1998). Complainant claimed that
she heard PM tell OIC that complainant had one downfall�her pregnancy.
PM testified that he did not recall telling OIC about complainant's
pregnancy but that if he did, it was merely for informational purposes.
OIC testified that he did not recall PM telling him complainant
was pregnant. Given that neither PM nor OIC testified that a comment
concerning complainant's testimony was definitely not made, but merely
noted that they did not recall any comment, we find that complainant
has satisfied the burden of raising an inference of discrimination.
The agency articulated a legitimate non-discriminatory reason for not
approving complainant's transfer. Specifically, OIC testified that
he approved the transfer of a female employee from a different facility
(S1), but informed complainant that she could apply for a future transfer.
OIC testified that he chose to accept the transfer of S1 because while
complainant was given a very good evaluation, S1 was given an outstanding
evaluation and had acting supervisory experience.
Complainant claims, on appeal, that her current supervisor told her
that OIC told him that complaint's transfer was not accepted due to her
pregnancy. Complainant provides no supporting evidence of this claim.
She also submits a transfer request of S1 (apparently discovered
when complainant and her supervisor were looking for complainant's
transfer request), which includes a handwritten notation of "Very Good."
During the investigation, OIC told the investigator that he had written
"VG" on the top of complainant's transfer request to indicate that
PM had given her a very good evaluation. The existence of a similar
notation on S1's request indicates that her evaluation may also have
been very good, rather than outstanding as OIC claimed. Despite this
inconsistency, however, complainant has offered no evidence to establish
that the decision to accept S1's transfer rather than complainant's was
motivated by discriminatory intent. The evidence submitted on appeal only
indicates that complainant may have had the same evaluation as S1, not a
superior one. Moreover, complainant offered nothing to rebut OIC's claim
that he also considered S1's acting supervisory experience. Accordingly,
complainant has failed to establish by a preponderance of the evidence
that the denial of her transfer was motivated by a discriminatory animus.
The FAD neglected to address complainant's claim that she was
denied acting supervisory training due to discrimination. We find,
however, that complainant failed to establish a prima facie case of
sex/pregnancy discrimination. Complainant failed to establish that any
similarly situated employees outside her protected class were treated
more favorably. Moreover, she offered no other evidence that she was
denied training due to her sex/pregnancy.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
2/11/00
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:
_____________
Date
________________________
Equal Employment Assistant
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.
2 Complainant also claimed that the Privacy Act was violated when
her medical condition (pregnancy) was revealed. The Commission has
no jurisdiction over this issue, as it does not involve a claim of
discrimination or retaliation.