01996814
03-12-2002
Margaret A. Stupey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margaret A. Stupey v. United States Postal Service
01996814
03-12-02
.
Margaret A. Stupey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996814
Agency No. 4-J-600-0146-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
claimed that she was discriminated against on the bases of sex (female)
and age (DOB: 9/25/39) when she was not utilized as a 204-B supervisor
on a fair basis, and when she was not utilized for the Northern Illinois
District CADRE Program, and forced to retire in February 1998.<1>
The record reveals that during the relevant time, complainant was employed
as a PS-5, Full Time Distribution Clerk at the agency's Highland Park,
Illinois facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 7, 1998. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. Complainant initially requested a hearing but
the case was remanded back to the agency by the AJ for a final agency
decision. The AJ indicated that complainant had waived her right to
an administrative hearing as a result of her continued, unjustified
noncompliance with requirements set forth by the Administrative Judge.
On February 7, 1997, complainant maintains that she was denied a higher
level assignment as Acting 204-B supervisor while two other employees
(female-38 and female-48) became the permanent acting 204-B supervisors.
Complainant maintains that in July or August 1996, she asked her
supervisor why she had not been used as acting 204-B supervisor as
frequently as she had once been. Complainant contends that her supervisor
responded that �I want someone who is younger and will be here longer.�
Complainant also claims that in September 1996, her supervisor stated
that �if you've been here more than 10 years or 12 years you are too
old to work here, I don't listen to old people.�
Complainant also contends that her supervisor stopped her from working
with the CADRE program which was a higher level paying job than her
position. She maintains that she had worked with this program for
18 years.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex and age discrimination with respect to both
of her claims. With respect to the Acting 204-B claim, the FAD found
that complainant had named two similarly situated female employees
with one being over the age of 40 years old. The FAD maintained that
complainant had failed to show that similarly situated employees not of
her protected groups were treated more favorably. Notwithstanding, the
FAD found that even if complainant had established a prima facie case
of sex and age discrimination, the agency had articulated legitimate,
nondiscriminatory reasons for its actions, namely, that complainant
was not selected to act as frequently as she had once been because
complainant was unwilling to work the higher level on many occasions
because she lost out on many Saturday replacement overtime situations.
The agency also maintained that complainant was very inflexible when asked
to change her day off for 204-B supervisory opportunities and therefore,
management had no choice but to seek out other 204-B candidates.
With respect to not being allowed to participate in the CADRE program,
the FAD found that even if complainant established a prima facie case of
sex and age discrimination, the agency had again articulated legitimate,
nondiscriminatory reasons for its actions, namely, that there was a
shortage of clerks in complainant's office and complainant was needed
to sort the mail until the office caught up with the backlog. The FAD
concluded that complainant had failed to demonstrate that the reasons
articulated by the agency were pretext to mask prohibited discrimination.
The FAD also found that the complainant had not presented any evidence
to indicate that any agency official harbored a discriminatory animus
towards her because of her sex or age.
On appeal, complainant contends that she has no additional documentation
regarding her case. She maintains that her supervisor's comments were
said out of earshot of others and that that is a tactic that is frequently
used by the agency. Complainant maintains that it does not make sense
that a good worker would be penalized by not being allowed to act.
Complainant also contends that she was forced to retire because of
her age. The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of 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 burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); and Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that complainant was not asked to act as frequently
because at times she was inflexible regarding her schedule and with
respect to not being allowed to participate in the CADRE program,
the agency maintained that due to a staffing shortage complainant was
not allowed to participate. We find that the agency has articulated
legitimate, nondiscriminatory reasons for its action.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
We find that complainant has failed to do so. We note that complainant's
supervisor denies making the statements related to age. Complainant has
failed to show that her sex and/or age were considered with respect to
her claims.
Further, with respect to complainant's claim that she was forced
to retire because of her sex and age, we note that to establish a
claim of constructive discharge, complainant must show that: (1) a
reasonable person in her position would have found the working conditions
intolerable; (2) conduct which constituted prohibited discriminatory or
retaliatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. See Taylor v. Department of Defense (AAFES),
EEOC Request No. 05900630 (July 20, 1990). Applying this standard
to the instant case, and considering the evidence of discriminatory
animus cited by complainant, we are not persuaded that a reasonable
person would have found the working conditions so intolerable that a
resignation was warranted. See Harrell v. Department of the Army, EEOC
Request No. 05940652 (May 24, 1995) (finding that while the proposed
reassignment of complainant constituted discrimination based on sex
and would have placed her into a contrived position and reduced her
grade from a GM to a GS, a reasonable person would not have resigned).
Complainant's supervisor controverted complainant's contention that
complainant was denied overtime, stating it was granted in accordance
with the needs of the service, and explained that complainant was asked
to go home once because of her attitude toward another employee and her
approach to a situation. We also note that complainant's supervisor
denies making the statements related to age and that the Postmaster
testified that complainant was the best mail sorter that he had ever seen,
so there is no reason why he or anyone else would want her to retire.
Based on the totality of the record, and after a full consideration
of all of complainant's arguments on appeal, we find complainant was
not constructively discharged by the agency. We also find that the
agency's determination that complainant failed to establish that she
was discriminated against was correct.
Therefore, 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
__03-12-02________________
Date
1The agency did not accept for investigation complainant's claim that
she was forced to retire, nor rule on this claim. However, complainant
made this claim in her complaint, in her investigative affidavit, and
on appeal, and agency officials responded to this claim. As there is
sufficient information in the record to rule on this claim, we will do
so here.