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.