01985665
02-16-2000
Milinda Carter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Milinda Carter v. United States Postal Service
01985665
February 16, 2000
Milinda Carter, )
Complainant, )
) Appeal No. 01985665
v. ) Agency Nos. 4-G-720-1177-95
) 4-G-720-1178-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001.
Complainant filed two complaints in which she claimed that the agency
retaliated against her for having filed a previous EEO complaint
(No. 4-G-720-1034-95, filed January 24, 1995) by scheduling her
for a fitness-for-duty examination (FFDE) on April 16, 1995, and by
purportedly not telling her the reason that she was sent for a FFDE
and denying her the opportunity to see the results on April 27, 1997.
The agency consolidated both complaints, investigated them, and issued
a single final decision finding no retaliation. The agency indicated
that it notified complainant of her right to request a hearing, but that
complainant failed to respond.
Complainant initially argues on appeal that she requested a hearing in
March 1998. She has not, however, presented a copy of her request,
or any other documentation that supports her claim that she timely
requested a hearing. We now proceed to the merits of her claim.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must first
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). Where reprisal is at issue, complainant may
establish a prima facie case by showing that she engaged in protected EEO
activity, that the individuals named in complaint knew of that activity,
and that she was subjected to an adverse action at such a time or in
such a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994).
The agency concluded that neither the occupational nurse and the
postmaster, the two individuals named in the complaints, knew of
complainant's earlier EEO complaint, in which she named the previous
postmaster. On appeal, complainant argues that these individuals were
made aware of her prior EEO complaint by the previous postmaster. She has
not presented any documents or sworn statements which corroborate this
assertion, however, or which contradict the statements of the nurse and
the postmaster, or otherwise undermine their credibility as witnesses.
Moreover, even if they were aware of Complaint No. 4-G-720-1034-95,
complainant has not presented any evidence whatsoever that either
individual was involved in the previous complaint. We therefore agree
with the agency that complainant has not established a prima facie case
of reprisal in either complaint.
After a careful review of the record, including complainant's contentions
on appeal, we affirm the agency's final decision because the preponderance
of the evidence has not established that discrimination had occurred.
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:
02-16-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date ________________________
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.