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.