Miriam H. Kemp, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionJan 13, 2000
01980647 (E.E.O.C. Jan. 13, 2000)

01980647

01-13-2000

Miriam H. Kemp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.


Miriam H. Kemp v. United States Postal Service

01980647

January 13, 2000

.

Miriam H. Kemp,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast/Southwest Region),

Agency.

Appeal No. 01980647

Agency No. 1H302101696

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning her complaint of unlawful employment

discrimination on the bases of reprisal (prior EEO activity), and

age (43), in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The appeal is accepted in accordance with EEOC Order No. 960.001. For

the following reasons, the Commission AFFIRMS the FAD as CLARIFIED.

The record reveals that during the relevant time, complainant was

employed as a Transitional Mark-up Clerk at the agency's North Metro

postal facility in Duluth, Georgia. Complainant claims that a Letter of

Removal (LOR) was issued to her by her supervisor (S) in retaliation for

engaging in EEO activity two weeks earlier regarding her non-conversion

from Transitional status to "career status," and also because of

discriminatory animus regarding her age. Complainant contends that the

reason stated for the removal (failure to follow S's direct order to move

from one sorting machine to another sorting machine), is untrue and that

she received no warnings or progressive discipline prior to her removal,

and that her employment record up to this point was "immaculate."

Believing she was a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a formal complaint. At the

conclusion of the investigation, the agency issued its FAD, finding no

discrimination.

The FAD concluded that complainant failed to establish a prima facie

case of age discrimination because she presented only speculation,

and no evidence, that age was a factor in the decision to issue the

LOR. The FAD also concluded that complainant failed to establish a prima

facie case of reprisal because she failed to demonstrate a causal nexus

between her removal and her prior EEO activity, noting that S was aware

of the activity, but not named as a responsible management official or

otherwise involved with the issue.<2> On appeal, complainant reiterates

her contentions of discrimination. The agency requests that we affirm

its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979), the Commission agrees with the agency that complainant

failed to establish a prima facie case of age discrimination because

there is no evidence that she was treated less favorably than similarly

situated younger workers charged with the same type of infraction, or

any other evidence which would otherwise establish an inference of age

discrimination.<3> Accordingly, we concur with the FAD's finding of no

discrimination on the basis of age.

However, we disagree with the agency's determination that complainant

failed to establish a prima facie case of reprisal, and we CLARIFY the

FAD accordingly. See Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying to retaliation cases). The record shows that

complainant contacted an EEO counselor approximately two weeks prior

to the issuance of the LOR, which we find is a very close temporal

relationship. Furthermore, the informal complaint named two managers in

the same chain of authority as S as the responsible management officials,

and S was interviewed by the EEO counselor. We also find that although

S was not formally named as a responsible management official, as

complainant's immediate supervisor, she nevertheless would have been

directly involved in the decision whether to convert complainant from

Transitional status to a career status appointment. Moreover, both named

responsible management officials had to authorize the issuance of the

LOR, which they did. Therefore, given the very close proximity in time

between these events, S's direct involvement, the fact that the named

management officials played a critical role in issuing the LOR, and

the fact that the LOR was issued without discussion or formal warning,

we find that the causal (time and manner) nexus has been demonstrated,

and a prima facie case of reprisal established.

However, we find that the agency has articulated a legitimate,

nondiscriminatory reason for its decision, and that complainant has

failed to show this reason is a pretext for reprisal. The LOR states that

complainant was removed because she failed to obey a direct order from

S, citing the postal regulation that employees must obey direct orders,

even in the case of disagreement, and that the proper recourse is to file

a written protest. Although complainant denies that S asked her to move

to another sorting machine, we find that affidavit testimony from many

witnesses verify that S asked complainant to move numerous times but

that she refused. Moreover, the record does not support complainant's

contention that her work record was "immaculate." According to her

February 1995 evaluation, complainant had been given a warning letter

for failure to follow instructions and for making false statements to

the postal police. Her performance was assessed as unsatisfactory and

it was not recommended that she be given a "PTF" position. Although

complainant sets forth many arguments claiming that the agency's reason

was pretextual, she presents no evidence to support any of her assertions

in this regard. Therefore, we conclude that notwithstanding the fact that

the agency's action in this case appears to be rather harsh, complainant

has failed to produce a preponderance of evidence to show that the

issuance of the LOR was motivated by reprisal. Instead, the record shows

that complainant did commit the infraction she was charged with, had

prior discipline and performance problems, and that a LOR for failing to

obey a direct order was sanctioned by applicable postal regulations.<4>

Accordingly, 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 as

CLARIFIED.

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 READ

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

January 13, 2000

__________________

Date

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.

2The FAD also incorrectly stated that complainant must prove that

"but for" her prior protected activity, she would not have received a

LOR. We remind the agency that complainant must prove that reprisal was

a motivating, not a determining, factor in the agency's action.

3Although complainant identifies younger workers who received LOR's

for fighting and other threatening behavior, which were reduced to

suspensions or other less severe discipline, we find that this is not the

same category of infraction which resulted in complainant's LOR, and that

these younger workers are not "similarly situated" for this reason. It

also appears that these younger workers were "regular employees" and not

in a Transitional status, and are not comparable for that reason as well.

4We note also that a Step 2 grievance hearing denied complainant's appeal,

finding that she disobeyed S's direct order as charged, and that there

was no evidence that the LOR was issued in retaliation for complainant's

union or EEO activity.