01986368
03-24-2000
Margaret A. Bowers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Margaret A. Bowers v. United States Postal Service
01986368
March 24, 2000
Margaret A. Bowers, )
Complainant, )
) Appeal No. 01986368
v. ) Agency Nos. 1D-241-1012-96
) 1D-241-1027-96
William J. Henderson, ) Hearing Nos. 120-96-5757X
Postmaster General, ) 120-97-4063X
United States Postal Service, )
(Allegheny/Mid-Atlantic Region) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaints of unlawful employment discrimination on the
bases of race (Black), sex (female) and reprisal in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant's first complaint was filed on January 18, 1996, and
her second was filed on May 3, 1996. In her first complaint, complainant
alleges she was discriminated against based on her race and sex when:
(1) in July 1995, she submitted an application for 204B training, but
was not notified until October 20, 1995, that she would begin training on
October 23, 1995; (2) on October 25, 1995, she was not allowed to sign-off
on documents while another trainee was allowed to do so; (3) on October
26 and 27, 1995, her supervisor became irate about training her; (4) on
November 1, 1995, her supervisor told her that she did not have time to
respond to questions about training while complainant was supervising on
the floor; (5) on November 8, 1995, her supervisor and an employee were
disrespectful to her in front of another employee; (6) on November 9,
the Manager of Distribution Operations (MDO) did not speak with her after
she submitted a routing slip seeking equal training; and (7) on November
28, 1995, the MDO gave her a Pre-Disciplinary Interview For Failure To
Follow Instructions while being trained as a 204B Acting Supervisor.
In her second complaint, complainant alleges she was discriminated
against based on her race, sex and reprisal when on March 3, 1996, a
White female employee was trained as an Acting Supervisor (hereinafter
204B) while complainant was denied the opportunity without reasonable
explanation or justification. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's decision.
The record indicates that prior to the earliest of the events at issue in
complainant's first complaint, complainant had engaged in EEO activity.
This activity involved the closing of four EEO complaints in February
1995, as well the filing of a new complaint in April 1995. The record
indicates that this activity did not involve any of the officials named
in the two complaints which sparked this present appeal.
The record reveals that during the relevant time, complainant was
employed as a Flat Sorter Operator on Tour 3 at the agency's Roanoke,
Virginia Processing and Distribution Center. Complainant alleges that
the MDO handled her July 1995 application for the 204B position, and has
engaged in an on-going pattern of discrimination since September 1994.
Complainant stated that there is no set criteria with any known rules,
regulations or guidelines for acting supervisors to adhere to, nor is
there a system for selection into the 204B program. Complainant further
stated that she had been denied the right to enter the program since 1994.
She stated that this program is geared toward White and Black males, as
well as White females. Complainant indicated that the acting supervisor
(supervisor A) , appointed by the MDO to train her, lacked competence
and leadership. She stated that her training was "doomed to fail."
Complainant further stated that supervisor A had no interest in training
her or in answering her questions. Complainant testified that she was
trained as a 204B for a very short, disruptive period of time from October
22 to November 9, 1995. Complainant declared that she was "black-balled"
out of the 204B program without being told why.
The MDO stated that he was complainant's second-level supervisor. The MDO
further stated that he received a PS Form 991, Applicant Information,
from complainant in July 1995 wherein she requested to be trained as
a 204B. He testified that he did not have a need for 204Bs at that time.
However, he further testified that he had a need for 204Bs in November
1995, and that he sent complainant a written notice on October 20, 1995,
informing her of the starting date for her training in the 204B program.
The MDO stated that he has selected employees to go into the 204B
program by reading their applications; checking attendance records;
asking regular supervisors for recommendations; and by comparing each
applicant's reputation and attitude towards co-workers. He noted that
he did not know of any particular policy for selection of applicants
for the 204B program. However, the MDO explained that he has selected
several employees, male and female of different racial backgrounds,
for the 204B program. The MDO indicated that he assigned supervisor A
(White female) to train complainant and a White male. The MDO stated
that he told complainant and the White male that because they were in
training and not yet supervisors, they should not direct other craft
employee's actions. While noting that he knew that complainant had
asked many questions during training with supervisor A, the MDO stated
that he made complainant aware that she could always ask him questions.
The record indicates that, on November 8, 1995, supervisor A directed
complainant to watch the 030 area while she went to the office to complete
some paperwork. Complainant stated that supervisor A told her to make
sure the Clerks were doing their job. While there, complainant became
involved in an oral altercation with another employee, who ultimately
filed a grievance requesting complainant not be allowed to work as a
204B again. Complainant testified that she immediately reported the
November 8th incident to supervisor A, who yelled at her that she had
upset one of supervisor A's employees, and that complainant should not
have told one of her employees what to do. The record reveals that
the MDO denied the employee's grievance at Step one. He testified
that he believed that the 204B position was neither a bargaining
unit position nor a part of management during the initial training.
However, on December 19, 1995, the agency and the union settled the
grievance by agreeing that complainant would not be used as a 204B again.
Complainant has not contended that this grievance resolution was entered
into for discriminatory reasons.
Regarding the submission of a routing slip for equal training, the
MDO stated that he did not want to talk to complainant until he had
an opportunity to investigate the November 8th incident. The MDO
stated that he conducted the Pre-Disciplinary Interview For Failure To
Follow Instructions on November 8th. He further stated that he had told
complainant that she lacked authority to direct another craft employee's
actions, and thus, she had failed to follow his instructions. The MDO
did not issue complainant any discipline as a result of her actions on
November 8th. Even though he disagreed with the grievance settlement
barring complainant from working as a 204B again, the MDO did not assign
complainant 204B work. However, he did give her other assignments and
did approve a light duty assignment when it was needed.
Supervisor A stated that she was not aware of any specific policies for
training 204Bs, but that she used the same concept that was used when
she was trained. She further stated that at no time did she attempt
to sabotage complainant's training. However, she indicated that she
did become irritated by complainant continuously asking, in different
ways, the same questions. She stated that she has had no problems in
training others. Recalling the incident involving complainant not being
able to sign-off on documents, supervisor A testified that she did not
refuse to allow complainant to sign the document, but that complainant
refused to sign it because the other trainee had written something on the
checklist with which complainant did not agree. Concerning the November
8th incident, supervisor A stated that she listened to complainant's side
of the incident and then did tell her, in the presence of a Mail Handler,
that she was wrong.
Complainant sought EEO counseling and subsequently filed a formal
complaint on January 18, 1996, and on May 3, 1996. The complaints were
accepted for processing and were investigated. At the completion of
investigation, complainant was provided with the opportunity to request
either a hearing before an EEOC Administrative Judge or a FAD without
a hearing. Complainant requested a hearing before an EEOC Administrative
Judge (AJ).
After conducting a hearing and reviewing the evidence of record, the
AJ issued a recommended decision (RD), dated June 22, 1998, finding no
discrimination. The AJ concluded that complainant failed to establish
that she was aggrieved with respect to all of the issues raised in her
first complaint. In addition, even assuming arguendo that complainant
was aggrieved, the AJ found that complainant failed to establish a
prima facie case of race or sex discrimination. The AJ also found
that complainant failed to establish a prima facie case of reprisal.
Concerning the second complaint, the AJ concluded that complainant
established a prima facie case of race and sex discrimination because
she demonstrated that similarly situated employees not in her protected
class were treated differently under similar circumstances. The AJ
also found that complainant established a prima facie case of reprisal
discrimination because complainant demonstrated that a White female, as
well as a White male were allowed to train as 204Bs; and because the MDO
was aware of complainant's prior EEO complaint where he was named as the
responsible official. The AJ then concluded that the agency articulated
a legitimate, nondiscriminatory reason for its actions, namely, that the
MDO did not assign complainant 204B work again because he was aware of
the grievance settlement barring complainant from working as a 204B.
The AJ also found that complainant's evidence did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination. In its FAD, the agency adopted the
AJ's RD finding no discrimination.
ANALYSIS
FIRST COMPLAINT
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected
class and that she was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom she alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. 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). We note that a nexus or causal relationship between
her prior protected EEO activity and the later agency action may be shown
by evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive can he
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Generally, the Commission has held that such a nexus may be established
if the protected EEO activity and the later adverse events occurred
within one year of each other. Patton v. Department of the Navy, EEOC
Request No. 05950124 (June 26, 1996).
Here the record shows that complainant is a member of two protected
groups: Black and female. Complainant was trained with a White
male. However, the Commission finds that complainant has not
established that this employee was treated differently under similar
circumstances. Supervisor A's training regimen for complainant's
comparator was seemingly the same. The record indicates that supervisor
A did not refuse to allow complainant to sign a document, but that
complainant refused to sign it because her comparator had written
something on the checklist with which complainant did not agree. In the
absence of any other evidence from which to infer a discriminatory motive,
the Commission finds that complainant has not established a prima facie
case of race or sex discrimination. Also, the Commission finds that
complainant engaged in protected activity as recent as April 1995;
and that a nexus exists between her prior EEO activity in April 1995,
and the current incidents occurring from October through November 1995.
However, we find that complainant has failed to show that either the MDO
or supervisor A was a responsible official involved in any of her prior
EEO activity. Further, complainant has not shown that she was subjected
to adverse treatment regarding these claims. The Commission has stated
that adverse actions need not qualify as "ultimate employment actions"
or materially affect the terms and conditions of employment to constitute
retaliation. EEOC Compliance Manual, No. 915.003 (May 20, 1998). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
Here, complainant has provided no evidence to show that either the
MDO's or supervisor A's alleged actions were based upon a retaliatory
motive and were reasonably likely to deter her or others from engaging
in protected activity. Thus, complainant cannot establish a prima facie
case of reprisal discrimination, based upon these claims.
SECOND COMPLAINT
I. Prima Facie Cases
Disparate Treatment
Here the record shows that complainant is a member of two protected
groups: Black and female. Complainant cited a White female for
comparison.<2> However, the Commission finds that complainant has not
established that this employee was treated differently under similar
circumstances. The record indicates that complainant was previously
barred from the 204B program as a result of the grievance settlement
entered into by the agency representative and the union representative.
Complainant has presented no evidence that the comparator was barred
from the 204B program as a result of a grievance settlement. Thus,
the Commission finds that all of the relevant aspects of complainant's
employment situation are not nearly identical to those of the comparative
employee whom she alleges was treated differently. In the absence of
any other evidence from which to infer a discriminatory motive, the
Commission finds that complainant has not established a prima facie case
of race or sex discrimination.
Reprisal
The record clearly shows that complainant engaged in protected activity
on January 18, 1996; that an agency official, particularly the MDO,
was obviously aware of her prior EEO activity; and that a nexus exists
between her prior EEO activity on January 18th, and the current incident
occurring on March 3, 1996. Furthermore, the record clearly shows
that complainant was subjected to adverse treatment by the agency when
management stopped designating her for 204B assignments. Therefore,
complainant has established a prima facie case of reprisal discrimination.
II. Legitimate, Nondiscriminatory Reason
After complainant establishes a prima facie case of discrimination,
the burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Burdine, 450 U.S. at 253.
Even though he disagreed with the grievance settlement barring complainant
from working as a 204B again, the agency's MDO did not assign complainant
204B work. The Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason explaining its action.
III. Pretext for Discrimination
Because the agency has articulated a legitimate, nondiscriminatory reason
for its action, complainant now bears the burden of establishing that the
agency's articulated reason is a pretext for discrimination. Shapiro,
supra. Complainant can do this by showing that a discriminatory reason
motivated the agency. Id. (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law. However, disbelief
of the reasons put forward by the agency, together with the
elements of the prima facie case, may suffice to show intentional
discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center, 113 S.Ct. at 2749)
(other citations omitted).
After a thorough review of all the evidence of record, the Commission
finds that complainant has failed to meet her burden of establishing,
by a preponderance of the evidence, that the agency's reasons for its
action was a pretext masking discrimination. While a White female was
allowed 204B training and complainant was not, the record clearly shows
that complainant was barred from the 204B program, specifically, because
of the grievance resolution entered into by the union and management.
Complainant was not barred from the 204B program because of her past
performance as a 204B trainee. There is no credible evidence to
demonstrate that the agency's actions in this situation were rooted in
retaliatory animus. Thus, the Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reason for its action was a pretext for discrimination.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory or retaliatory animus toward complainant's protected
groups. As a result, we discern no basis to disturb the AJ's RD.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.
2Because complainant's claim cited only a White female for comparison,
complainant's claim of sex discrimination lacks merit here.