Marie F. Grymes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01a03062 (E.E.O.C. Sep. 22, 2000)

01a03062

09-22-2000

Marie F. Grymes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.


Marie Grymes v. United States Postal Service

01A03062

09-22-00

.

Marie F. Grymes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast/Southwest Region),

Agency.

Appeal No. 01A03062

Agency No. 4G770087598

Hearing No. 330998244x

DECISION

INTRODUCTION

Marie F. Grymes (complainant) initiated a timely appeal on March 17, 2000,

with the Equal Employment Opportunity Commission (the Commission) from

a final agency decision concerning her complaint of unlawful employment

discrimination in violation of Title VII.<1> The Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the basis of sex (female/pregnancy) when her

request for a mutual transfer was denied due to her job attendance.

BACKGROUND

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

as a Regular Rural Carrier at the Montgomery, Texas Post Office. Under

the Rural Carrier union contract, complainant sought to obtain a mutual

trade with another Rural Carrier located at the Jasper, Texas facility

to move closer to her husband in the Houston area. In accordance with

the union contract, the Postmasters at the two facilities had the final

consent to allow the respective employees to transfer. Although the

Montgomery Postmaster agreed to release the complainant and accept

a carrier from Jasper, the Jasper Postmaster (Postmaster) refused to

accept complainant due to her leave record.<2> Complainant, however,

justified her job attendance to the Jasper Postmaster as leave without

pay necessary to recover from a complicated pregnancy.<3>

On August 11, 1998, complainant was informed that her request for a

mutual transfer was denied by the Postmaster due to her attendance record.

Believing she was a victim of sex discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on October 13, 1998.

Therein, she alleged discrimination based on sex (female/pregnancy) .

The agency sent complainant a letter accepting for investigation

complainant's allegations of discrimination based on the Postmaster's

decision to not honor her transfer request from the Montgomery facility

to the Jasper facility.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a decision

on January 27, 2000, finding no discrimination. Specifically, the AJ

found that complainant failed to demonstrate that similarly situated

employees not in her protected classes were treated differently under

similar circumstances when complainant was denied a mutual transfer but

another female employee was granted a hardship transfer by accepting a

downgrade. Further, the AJ found that complainant did not establish that

more likely than not, the agency's articulated reasons were a pretext

to mask unlawful discrimination. The agency subsequently adopted the

AJ's decision in its FAD, dated February 24, 2000, and implemented a

decision finding no discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the Administrative Judge erred

in failing to find that she established a prima facie case of sex and

pregnancy discrimination.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a claim brought under Title

VII is patterned after the three-step process set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant has the

initial burden of establishing a prima facie case of discrimination.

If the complainant meets this burden, then the burden shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. The complainant must then prove, by a preponderance

of the evidence, that the legitimate reason articulated by the agency

was not its true reason, but a pretext for discrimination. Thus, the

complainant bears the ultimate burden to demonstrate that the agency's

decision was motivated by discrimination based on sex. See McDonnell

Douglass, 411 U.S. 792.

The Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000e(k), which

was enacted in 1978, states that discrimination on the basis of

�pregnancy, childbirth or related medical conditions� constitutes sex

discrimination under Title VII. Moreover, the PDA provides that for

all employment-related purposes, pregnant employees shall be treated the

same as other employees similarly situated with respect to their ability

to work. See, e.g., Ensley - Gaines v. United States Postal Service,

100 F.3d 1220 (6th Cir. 1996).

A prima facie case of discrimination based on sex is established where

complainant has produced sufficient evidence to show that: (1) she is

a member of a protected class; (2) she was qualified for the transfer;

(3) she was not selected for the transfer; and (4) she was accorded

treatment different from that given to persons otherwise similarly

situated who are not members of the protected class. See Williams

v. Department of Education, EEOC Request No. 05970561 (August 6, 1998);

Carver v. Department of the Interior, EEOC Request No. 05930832 (May

12, 1994). In the absence of comparative evidence, the complainant may

use other evidence to establish a prima facie case of discrimination.

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);

In the present case, there is no evidence that the Postmaster had ever

authorized a mutual transfer of employees to enable complainant to make

an exact comparison between the Postmaster's prior treatment of employee

transfers and complainant's situation. Complainant argues that the

proper comparison is the Postmaster's acceptance of the transfer of

a non-pregnant female employee with a similar negative leave record.

According to the agency and supported by the AJ's decision, the female

employee with a medical problem had a prior working relationship

with the Postmaster and also accepted a downgrade in position from

letter carrier to custodian when the Postmaster allowed her transfer.

For these reasons, the agency argued that the two employees were in fact

not similarly situated.

For purposes of analysis, we will assume complainant established a

prima facie case of sex discrimination.<4> At this point, the burden

of production shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its action. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). As reflected in the record,

the Postmaster explained his decision to deny complainant's transfer,

but accept the female employee by drawing the distinction between the

types of transfers and the respective employees. Although the two

employees compiled similar leave records due to medical conditions,

the non-pregnant employee had once worked at the Postmaster's facility

and had already established a good reputation. The Postmaster felt

that since he personally knew the strong work ethic of the employee and

that her medical condition necessitating leave had transpired, he could

trust that her leave record would improve. His personal knowledge of

the employee coupled with her voluntary transfer to a lower position as

part of a hardship transfer, differentiated the two employees and their

transfer situations. We find that the agency has met its burden of

providing a nondiscriminatory reason for its action.

Complainant then bears the burden of establishing that the agency's

articulated reasons were a mere pretext for discrimination. See Burdine

at supra. After considering the evidence of record, we find that

complainant fails to demonstrate that the agency's articulated reasons

are pretextual. Complainant does not offer any evidence that the

Postmaster's explanations for allowing the employee that he personally

knew and who accepted a downgrade in position were in fact merely a

pretext for discriminating against her. We note that the Postmaster

denied making the statement attributed to him by the union steward and

the AJ did not credit it in her decision. The Postmaster also pointed

out in his testimony that complainant's leave usage was scattered and

that this was a factor in his decision. In fact, the record indicates

that complainant took various amounts of sick and emergency leave just

prior to her seeking the transfer, which was also well beyond the time

she was pregnant. Thus, we find that complainant has not met her burden

of showing the Postmaster's reasons were a pretext for discrimination

and that the agency's actions were motivated by discriminatory animus

toward complainant's pregnancy. Accordingly, we discern no basis to

disturb the AJ's decision and find that complainant has not established

that she was discriminated against based on her sex.

CONCLUSION

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 hereby AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

09-22-00

Date

_______________

Date 1 On 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.

2 The Commission notes that the Jasper Postmaster agreed to release

the carrier to the Montgomery facility, but would not consider accepting

complainant's transfer until she improved upon her attendance record.

3 The record reflects that complainant was absent from January 4, 1997,

until May 9, 1997, on leave without pay and emergency annual leave.

It is not clear as to why this leave was taken. Complainant then took

extended leave from October 1997 until April 1998, which corresponds with

her pregnancy and the birth of her child on January 13, 1998. Complainant

then used scattered sick leave totaling three weeks in the spring and

summer of 1998, just prior to the denial of her transfer request.

4While a union steward at the Postmaster's facility testified that the

Postmaster told him that no one who took three months off for the birth

of a child would work at his facility, the Postmaster denied making

this statement, and the AJ did not credit the union steward's testimony

in her decision.