Majoria Bragg, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 31, 2001
01995349 (E.E.O.C. Oct. 31, 2001)

01995349

10-31-2001

Majoria Bragg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Majoria Bragg v. United States Postal Service

01995349

10-31-01

.

Majoria Bragg,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01995349

Agency No. 4-I-500-0043-98

Hearing No.

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaints 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. (1994 & Supp. IV 1999) (Title VII). The appeal

is accepted pursuant to 29 C.F.R. � 1614.405.

ISSUE

Complainant alleged that she was retaliated against for earlier

participating in equal employment opportunity (EEO) activity when:

1) on July 2, 1998, complainant was issued a seven-day suspension for

failure to complete her route on June 27, 1998; 2) on August 18, 1998,

complainant was forced to work overtime on her scheduled day off; 3)

on August 18, 1998, complainant learned that a co-worker junior to her

was allowed to leave work early on June 27, 1998 while complainant was

required to remain on the job; and 4) on September 23, 1998, complainant

learned that her annual leave request for September 21 - September 23,

1998 was approved on September 10, 1998, but she was not notified of

this approval.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a letter carrier at the agency's Rock Island, Illinois facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and subsequently filed formal complaints on Oct. 19, 1998 and

Nov. 19, 1998. At the conclusion of the investigation, complainant was

informed of her right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

Complainant requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant was not retaliated

against as alleged.

Both parties raised the same matters on appeal as were raised below.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission

agrees with the agency that complainant failed to establish a prima facie

case of reprisal discrimination because the earlier EEO activity which

complainant believed formed the basis of the agency officials' animus

occurred in 1993 and 1994, too far removed in time from the instant 1998

events to show a nexus between the events. Patton v. Department of the

Navy, EEOC Request No. 05950124 (June 27, 1996) (two year lapse between

events too long to establish nexus).

The Commission further finds that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that complainant failed to show 1) that the agency's count and

inspection of her route on June 27, 1998 was in error or that complainant

was treated differently than similarly situated co-workers; 2) that

on August 18, 1998, other employees who were junior to complainant on

the seniority list were available to work; 3) evidence refuting the

non-discriminatory assertion that complainant's co-worker was allowed

to leave work because complainant's supervisors did not know how much

work had to be completed by complainant; and 4) evidence refuting her

supervisor's assertion that signed and approved leave request forms

delivered on September 10, 1998 were not returned to employees until

September 16, 1998, and because at complainant's request the supervisor

had earlier signed and returned the leave request form to complainant

in acknowledgment that the leave had been requested, the supervisor

no longer had a leave request form to return to complainant. In her

affidavit, complainant's supervisor went on to state that the approved

leave schedule was posted on September 16, 1998 while complainant was

at work, thus enabling complainant to observe that her leave request

for September 21 - 23, 1998 had been approved.<1>

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

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

______10-31-01____________

Date

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

______________________________

1 We note that the agency should have dismissed this claim pursuant to

29 C.F.R. �� 1614.107(a)(1), since complainant failed to show how she

was aggrieved by the actions of the agency. Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994).