01a54752
11-07-2005
Mildred M. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Mildred M. Davis v. United States Postal Service
01A54752
November 7, 2005
.
Mildred M. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A54752
Agency No. 4C-270-0012-05
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of 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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant, a retired
Sales, Service/Distribution Associate at the Raleigh Post Office
in Raleigh, North Carolina, filed a formal complaint on December 8,
2004, alleging that she was discriminated against on the bases of age
(D.O.B. 12/30/49) and in reprisal for prior EEO activity when on October
12, 2004, complainant's supervisor subjected her to disparate treatment
with regard to hours worked, working conditions, overtime, and work
assignments. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
Applying a disparate treatment analysis, the agency found that
complainant failed to establish a prima facie case of age discrimination.
Specifically, complainant and the comparison employee were the same age.
Therefore, no inference of discrimination based on age could be made.
The agency also found that it proffered legitimate, nondiscriminatory
reasons for its actions that complainant has failed to rebut, and
concluded that there was no evidence to indicate that the alleged
discriminatory official would have any discriminatory animus towards
complainant. As for complainant's reprisal discrimination claim, the
agency concluded that complainant has not established a prima facie case
of reprisal discrimination. The agency determined that complainant
provided no evidence or testimony to show a nexus between her prior EEO
activity and the alleged discriminatory actions. Complainant raises no
new arguments on appeal. The agency requests that we affirm its FAD.
STANDARD OF REVIEW
As an initial matter, we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
ANALYSIS AND FINDINGS
Age Discrimination Claim
First, we find that the agency properly analyzed complainant's disparate
treatment claim under the three-part evidentiary scheme fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this standard, the complainant must generally establish a
prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). However, 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 where the complainant must prove by a preponderance of the
evidence that the agency's explanation is pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The Supreme Court has held that because the ADEA prohibits discrimination
on the basis of age and not class membership, the fact that a similarly
situated comparative is substantially younger than the plaintiff is a
far more reliable indicator of age discrimination than the fact that
the plaintiff was treated differently than someone outside his protected
class. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (September
18, 1996). While there is no bright-line test for what constitutes
�substantially younger,� that term has generally been applied to age
differences in excess of five years. See Hammersmith v. Social Security
Administration, EEOC Appeal No. 01A05922 (March 6, 2002). In the instant
case, we agree with the agency in finding that complainant has failed
to draw an inference of discrimination based on age because complainant
and the comparison employee are both the same age. Thus, the comparison
employee is not substantially younger than complainant. Assuming arguendo
that complainant had established a prima facie case of age discrimination,
the agency has proffered legitimate, nondiscriminatory reasons for
its actions. For example, the agency explained that complainant was
given an official discussion because complainant had three unscheduled
leave requests within a 90-day period. The agency also explained
that all employees, not just complainant, were told to stop making
the few extra minutes each day and to hold their time to eight hours.
Despite complainant's contention to the contrary, the agency maintained
that complainant was not denied overtime. Complainant failed to rebut
these reasons as pretext. Moreover, we agree with the agency in finding
that there is no evidence to support that the agency's actions were
motivated by discriminatory animus towards complainant's age.
Reprisal Discrimination Claim
We also find that the record does not support an inference of reprisal
discrimination. Complainant may establish a prima facie case of reprisal
by showing that: (1) she engaged in protected activity; (2) the agency
was aware of the 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. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Hochstadt v. Worcester
Found. for Exper. Biol., Inc. 425 F. Supp. 318 (D. Mass. 1976),
aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
claims of reprisal), and Coffman v. Department of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may be shown by
evidence that the adverse treatment followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005). In considering the time elapsed, �the proper inquiry
includes consideration of what has transpired since the complainant
initiated EEO Counselor contact or filed his formal complaint, including
communications between the EEO office and management or co-worker
witnesses, investigative interviews or execution of affidavits, and so
on.� Hicks v. United States Postal Service, EEOC Appeal Nos. 01994651
and 01A00380 (April 24, 2000).
Here, it is undisputed that complainant engaged in prior protected
activity when she filed an EEO complaint on October 6, 2003, however,
we agree with the agency in finding that complainant has failed to show
a nexus between this prior EEO activity and the allegations raised
in this complaint. Our case law holds that this nexus may be shown
by evidence that the adverse treatment followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005). We agree with the agency's finding that neither the
passage of approximately (12) months between the protected activity nor
the agency's actions with respect to complainant's work hours and work
assignments give rise to an inference of retaliatory motive. We also
note that nothing transpired subsequent to complainant filing her prior
EEO complaint that would link to her instant complaint.
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 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
November 7, 2005
__________________
Date