01996192
10-04-2001
Lorraine Isaac-Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (USPS Headquarters), Agency.
Lorraine Isaac-Johnson v. USPS
01996192
October 4, 2001
.
Lorraine Isaac-Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(USPS Headquarters),
Agency.
Appeal No. 01996192
Agency No. HI020096
Hearing No. 160-97-8533X
DECISION
Complainant timely initiated an appeal from the agency's final
decision 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges discrimination on the bases of race (Black), color
(black), national origin (African-American), sex (female), and reprisal
(prior filing of EEO complaints) when she was denied reinstatement to
her former position as a Postal Police Officer on March 26, 1996.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was employed
as a Postal Police Officer in the agency's New York Division. Effective
March 2, 1996, complainant had requested, and was granted, permission
to transfer from her position in the Postal Inspection Service Security
Force (Postal Police Officer) to a Postal Service position in Columbia,
South Carolina. She subsequently wrote two letters, dated March 25,
1996 and April 17, 1996, requesting to return to the New York Division
or, alternatively, to the Newark Division. Both requests were denied,
without explanation.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a formal complaint on July
11, 1996. She alleged that she was denied reinstatement while others
who are similarly situated were granted reinstatement, and that this
constituted reprisal for her prior EEO activity. At the conclusion of
the investigation, complainant was provided a copy of the investigative
file and requested a hearing before an EEOC Administrative Judge (AJ).
On April 28, 1999, the AJ granted summary judgment without a hearing,
finding no discrimination.
The AJ first concluded that the complainant failed to establish a prima
facie case of race, color, national origin, or sex discrimination, noting
that the persons complainant cited as comparators were not similarly
situated because their reinstatements occurred prior to the appointment
of a new Inspector-in-Charge who implemented the new policy regarding
requests for reinstatement. The AJ further determined that complainant
failed to establish a prima facie case of reprisal because the selecting
officials were in no way connected to, nor had knowledge of, her prior
EEO activity.
The AJ then recommended a finding of no discrimination, which the agency
adopted in its final decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its final decision.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st
Cir. 1976), the Commission agrees that complainant failed to establish
a prima facie case of race, national origin, color, or age discrimination.
For complainant to prevail, she must present facts that, if unexplained,
reasonably give rise to an inference of race, color, national origin and
sex discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The Commission
notes that, in order to establish a prima facie case, a complainant may
show that he is a member of a protected class, that he was subjected to
adverse treatment, and that he was treated differently than otherwise
similarly situated employees outside of the protected class. See Kimble
v. Department of the Navy, EEOC Request No.01983020 (August 16, 2001).
The AJ found that complainant failed to establish a prima facie case
because she did not demonstrate that similarly situated persons, outside
of her protected class, were treated more favorably than she. Complainant
cited several employees whom she believed to be similarly situated
to herself, and whose requests for reinstatement were granted. The
investigative report indicated, and a management official testified,
however, that none of those individuals were granted reinstatement during
the relevant time period. Complainant did not submit any additional
evidence to refute that contention.
Complainant, however, has maintained that the investigative report
is incomplete. She contends that it omits the name of an individual,
not in her protected class, who was reinstated to the New York Division
in a Postal Police Officer position, within the relevant time period.
Another individual has also avers that this same individual was reinstated
within the relevant time period. Complainant also states in her brief
that she was told by a different individual that he was at a party
where the selecting officer admitted that the individual in question
had been granted reinstatement and had not been required to pass the
new examination. However, these contentions are not supported by any
probative evidence. There is no evidence in the record to establish that
either complainant or her witnesses have any first-hand knowledge of this
alleged reinstatement. Accordingly, we find that complainant failed
to demonstrate that she was treated less favorably than any similarly
situated individual who is not in her protected class. Nor did she
present any other facts that, if unexplained, reasonably give rise to
an inference of race, color, national origin or sex discrimination.
In a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997), a complainant may establish a prima
facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Although the AJ found that the persons who denied complainant's
reinstatement knew nothing of her prior EEO activity, complainant has
consistently argued that the selecting official for the New York Division
had to have known about her prior EEO activity since he was a named
responsible official in more than one of her prior EEO complaints, and
was involved in the settlement of some of them. Complainant argues that
this therefore constitutes a disputed issue of material fact and, thus,
the AJ was incorrect in determining that summary judgment was warranted
because the selecting officials were not aware of complainant's prior
EEO activity.
Nevertheless, the agency has put forth a legitimate, non-discriminatory
reason for denying the complainant's reinstatement. Specifically,
the reason given by the selecting officer in the New York Division is
that at the time that complainant requested reinstatement, hiring was
taking place from the new register and requiring successful completion
of the new basic training course. The selecting official for the Newark
Division has stated that no reinstatements of Postal Police Officers
have been made during the past eight years.
Therefore, even assuming that complainant has established a prima facie
case of reprisal, she has not met her ultimate burden of persuading
the fact finder, by a preponderance of the evidence, that the reasons
offered by the agency were not the true reasons for its actions, but
rather were a pretext for discrimination. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981), United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 716 (1983). 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.
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. We discern no basis to
disturb the AJ's decision, and, therefore, AFFIRM the agency's final
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
October 4, 2001
__________________
Date