Miriam B. Flowers, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 18, 2000
01986452 (E.E.O.C. Apr. 18, 2000)

01986452

04-18-2000

Miriam B. Flowers, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Miriam B. Flowers v. United States Postal Service

01986452

April 18, 2000

Miriam B. Flowers, )

Complainant, )

) Appeal No. 01986452

) Agency No. 4G-700-1227-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

On August 28, 1998, Miriam B. Flowers (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

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, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission

hereby 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

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

her based on race, sex and retaliation when she was not offered light

duty hours, and when she was denied "Go Back Time."

BACKGROUND

Complainant was employed by the agency as a City Letter Carrier in

Marrero, Louisiana. Complainant initiated EEO Counseling on April

13, 1995. She filed a formal complaint on August 29, 1995, alleging

discrimination on the bases of race (white), sex (female) and reprisal

(prior EEO activity) when: 1) on March 14, 16, and 17, 1995, she was

not offered light duty hours, and 2) on March 24, 1995, she was denied

"Go Back Time."<2> The agency accepted the complaint for investigation

and processing. At the conclusion of the investigation, the agency

issued a copy of its investigative report and notified complainant of

her right to request an administrative hearing. After complainant asked

that the agency issue its final decision on the record, the agency issued

its FAD on July 20, 1998.

In its FAD, the agency found that the complainant had failed to establish

a prima facie case of race and sex discrimination because she was unable

to demonstrate that there were similarly situated employees of a different

race or sex who were treated more favorably than her. It also found that

complainant had not shown a prima facie case of reprisal because she

had not proven a causal connection between her EEO activity and being

denied light duty. The FAD further stated that complainant had failed

to establish that the legitimate, nondiscriminatory reasons articulated

by the agency for its decisions were a pretext for discrimination.

Complainant appeals, without comment.

ANALYSIS AND FINDINGS

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); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claims of discrimination, the agency noted

that complainant had never requested light duty for the dates in question,

nor were the necessary medical forms submitted in order to have light

duty approved. The record contains a note from complainant's doctor

noting that she could not wear her left shoe properly due to a blister,

and requesting other suitable work. According to the affidavit submitted

by the Supervisor, Customer Services ( MO-1), complainant was given

informal light duty assignments on those dates and took sick leave for the

amounts of time of each day where there was no light duty work to be done.

MO-1's affidavit stated that complainant worked approximately the same

amounts of time as another employee who was officially on light duty.

Regarding the "Go Back Time" issue, the MO-1 also noted in his affidavit

that the Marrero, Louisiana delivery unit does not have a "specific

same day request or �go back' procedure or policy" and that annual leave

requests are "approved/disapproved according to the National Agreement

and the LMOU [Local Memorandum of Understanding], neither of which have

provisions for such requests." Complainant's immediate supervisor on

March 24, 1995, (MO-2) stated in his affidavit that he never received any

request for "Go Back Time" from complainant on that date. The record does

not contain a copy of complainant's request for leave on March 24, 1995.

We find that the agency has articulated legitimate, nondiscriminatory

reasons for its actions.

Since the agency articulated a legitimate, nondiscriminatory reason for

its action, the burden returns to the complainant to demonstrate that the

agency's articulated reason was a pretext for discrimination. We find

that complainant has failed to do so. Complainant presented no arguments

or evidence designed to show that the agency's given reasons were pretext

for discrimination, beyond her assertions that the agency had engaged

in illegal discrimination. She claimed that there was a "Go Back Time"

policy at the facility but failed to offer any proof of its existence,

or of the manner in which it was to be applied to requests for leave.

She also did not show that she had requested it on the date in question.

Therefore, the agency's determination that complainant failed to establish

that she was discriminated against was correct.<3>

Accordingly, the decision of the agency was proper and is AFFIRMED.

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:

April 18, 2000

______________ __________________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ _________________________

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 Counselor's Report defined "Go Back Time" as "when the mail is light

and the carrier returns to the office early to case mail. He/she does not

return to the street but [is] granted leave for the duration of the day."

3 We find that the agency erred to the extent that it found that

complainant had not established a prima facie case of race or sex

discrimination because she was unable to demonstrate that she was treated

less favorably than any similarly situated employee. We note that to

establish a prima facie case, complainant must only present evidence

which, if unrebutted, would support an inference that the agency's

actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not

necessary for the complainant to rely strictly on comparative evidence in

order to establish an inference of discriminatory motivation necessary to

support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,

116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);

Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).