Margaret A. Bowers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01986368 (E.E.O.C. Mar. 24, 2000)

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.