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.