Linda Mitchell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southwest Region). Agency.

Equal Employment Opportunity CommissionSep 14, 2000
01a03681 (E.E.O.C. Sep. 14, 2000)

01a03681

09-14-2000

Linda Mitchell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Region). Agency.


Linda Mitchell v. United States Postal Service (Southwest Region)

01A03681

September 14, 2000

.

Linda Mitchell,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southwest Region).

Agency.

Appeal No. 01A03681

Agency Nos. 4-G-770-0593-98; 4G-770-0634-98

Hearing No. 330-99-8231X

DECISION

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

concerning her equal employment opportunity (EEO) 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. Complainant alleges

she was discriminated against on the bases of sex (female) and reprisal

(prior EEO activity) when:

(1) on May 27,1998, she was put off the clock; and

(2) she received a Notice of 7-days Suspension by certified letter

dated June 2, 1998.

For the following reasons, the Commission AFFIRMS the agency's final

action.

The record reveals that complainant, a Distribution Clerk, PS-5, at the

agency's Memorial Park Station facility, Houston, Texas, filed formal

EEO complaints with the agency on June 30 and September 24, 1998,

alleging that the agency had discriminated against her as referenced

above. At the conclusion of the investigation, complainant received

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of sex discrimination. Specifically, the AJ found that complainant

failed to demonstrate that similarly situated male employees not in her

protected class were treated differently under similar circumstances.

The AJ concluded, however, that complainant established a prima facie

case of reprisal, because she had engaged in prior EEO activity, two of

the management officials involved in disciplining her were aware of this

activity, complainant suffered adverse agency actions by being placed

off the clock and suspended, and these agency actions were sufficiently

close in time to her prior EEO activity that a retaliatory motive could

be inferred. Hochstadt v. Worcester Foundation for Experimental Biology,

Inc., 425 F. Supp. 318, 323-325, aff'd, 545 F.2d 222 (1st Cir. 1976);

and Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339 (10th

Cir. 1982, cert. denied, 459 U.S. 1071 (1982).

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions when it stated that complainant

was placed off the clock and issued the suspension because she failed to

follow her supervisor's instructions to return to work and then to leave

the building. The AJ then found that complainant did not establish that

more likely than not, the agency's articulated reasons were a pretext

to mask unlawful retaliation. The AJ reached this conclusion because

she found that complainant's supervisor, who was the moving force

and the one directly involved in disciplining complainant, was not

aware of complainant's prior EEO activity. The agency's final action

implemented the AJ's decision. Neither complainant nor the agency makes

any contentions on appeal.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.� Universal Camera Corp. v. National

Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).

A finding that discriminatory intent did not exist is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. Complainant testified that

she refused to go to the waste mail area despite being ordered to as she

had not been trained in the new procedures for disposing of waste mail,

she was too senior to be assigned to waste mail, and she had scheme

knowledge and should have been working scheme mail. In this regard,

however, we note that the agency's Employee and Labor Relations Manual

Section 666.51 states in pertinent part:

Employees must obey the instructions of their supervisors. If an

employee has reason to

question the propriety of a supervisor's order, the individual will

nevertheless carry out

the order and immediately file a protest in writing to the official in

charge of the installation, or appeal through official channels.

The record reflects that complainant did not obey the instructions of

her supervisor in direct violation of the above regulation. We conclude

that complainant failed to present evidence that any of the agency's

actions were in retaliation for complainant's prior EEO activity or were

motivated by discriminatory animus toward complainant's sex. Hence, we

discern no basis to disturb the AJ's decision. Therefore, after a careful

review of the record, including arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final action.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 14, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.