Patricia Ford, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01971689 (E.E.O.C. Jan. 29, 1999)

01971689

01-29-1999

Patricia Ford, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


Patricia Ford v. United States Postal Service

01971689

January 29, 1999

Patricia Ford, )

Appellant, )

) Appeal No. 01971689

v. ) Agency No. 4A-105-1047-94

) Hearing No. 160-95-8434X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(N.E./N.Y. Metro Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (female), age (forty-three)

and reprisal (prior EEO activity) 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. Appellant alleges she was discriminated against when: (1)

she was supervised more closely than her coworkers while working; (2)

she was restricted from working in the facility basement; (3) on January

19 and February 18, 1994, her request for leave or change in schedule

required the approval of the Postmaster (PM); and (4) on February 18,

1994, she received a Notice of Suspension of Fourteen Days or Less.<1>

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

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as a Distribution/Window Clerk, PS-5, at the agency's facility in

Mount Kisco, New York ("facility"). Appellant stated that in February,

1994, she was required to take refresher window training at the agency's

Chappaqua Post Office (CPO), and she asked her On-the-Job-Trainer (OTJT)

if she could finish her last day of training at the facility due to

bad weather. On February 11, 1994, and based on appellant's belief that

she had permission from her home supervisor to finish her training at the

facility, the OTJT allowed appellant to return to the facility, but upon

her arrival, the PM stated she never authorized appellant's return, and

directed her to return to CPO. Appellant stated that the CPO Postmaster

then informed her she need not return to the CPO as her training was

completed, but the PM informed her that she must either take annual

leave or return to the CPO. Several days later, appellant's supervisor

issued her a seven (7) day suspension for Unauthorized Termination of

Schedule Training, Providing False Information to a Postmaster, and

Conduct Unbecoming a Postal Employee.

In response to appellant's allegation that she was discriminated against

on the basis of sex, age and reprisal for the reasons stated, supra,

the PM and appellant's supervisor (AS) testified that the Notice of

Suspension (NS) was given as appellant terminated training on her own,

provided false information to the CPO Postmaster, and lied about her

actions.<2> The PM stated that all employees were supervised closely

to improve productivity, that supervisors signed most of appellant's

leave requests, and that the AS requested that appellant not work in the

basement. However, the AS testified that the PM monitored appellant's

work more closely than other employees, that the PM instructed him to

have appellant vacate the basement, and that appellant's requests for

leave or schedule changes were held for the PM's verbal approval.<3>

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a formal complaint on June 2,

1994. At the conclusion of the investigation, appellant was provided

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

Recommended Decision (RD) finding no discrimination.

The AJ concluded that, assuming appellant established a prima facie

case of age, sex and reprisal discrimination, the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ relied

on the testimony of the PM and AS that the NS was issued as appellant

terminated training without proper authorization, provided false

information to the CP Postmaster regarding the authorization, and lied

about receiving such permission. Based on the testimony adduced at

the hearing, however, the AJ found that while the evidence strongly

suggested the PM treated appellant less favorably after she became the

Union Shop Steward, this was the result of her overall challenge to the

PM's authority rather than unlawful discrimination based on age, sex

or reprisal. As such, the AJ concluded that appellant failed to meet

her burden in establishing that the agency's actions were motivated by

discriminatory animus.

The agency's FAD adopted the findings of the AJ. Appellant has made no

new contentions on appeal. The agency stands on the record and requests

that the Commission affirm its FAD.

After a careful review of the record, and applying the standards set forth

in U. S. Postal Service Board of Governors v. Aikens, 460 U. S. 711,

713-714 (1983), the Commission finds that the AJ's RD summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. We agree with the AJ that as appellant was not authorized by

the PM or AS to curtail her training and provided false information to the

CP Postmaster that she had such authorization, the agency articulated a

legitimate, nondiscriminatory reason for issuing the NS. Aikens, supra.

We further agree with the AJ that while the PM treated appellant less

favorably than other employees in several respects, the evidence fails to

establish that this treatment was motivated by discrimination on the basis

of age, sex or reprisal. St. Mary's Honor Center v. Hicks, 509 U. S. 502

(1993). We thus discern no basis to disturb the AJ's findings of no

discrimination which were based on a detailed assessment of the record

and the credibility of the witnesses.<4> See Anderson v. Bessemer City,

470 U.S. 564, 575 (1985); Saramma v. Department of Veterans Affairs, EEOC

Request No. 05930131 (September 2, 1993); Wrenn v. Gould, 808 F. 2d 493,

499 (6th Cir. 1987). Therefore, after a careful review of the record,

including arguments and evidence not specifically discussed in this

decision, the Commission AFFIRMS the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (SO993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Jan 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 We note that in her complaint, appellant alleged that she was

discriminated against by the Notice of Suspension, and thus the agency

accepted this issue for investigation. However, pursuant to agreement

between the parties, the agency later accepted the other three examples

of discrimination, supra, for investigation.

2 We note that the NS was reduced to a Discussion in a Step 3 Settlement

Agreement.

3 We note that the reasons given by the PM and AS for issuing the NS are

consistent, while the reasons each gave for other alleged discriminatory

treatment are not entirely consistent. However, none of the articulated

reasons are grounded in discriminatory or retaliatory animus, and

such an inconsistency, without more, is insufficient to establish that

discriminatory animus motivated the PM or AS's actions.

4 While the AJ noted that appellant has stated the NS was part of a

continuing pattern of harassment by the PM, harassment was not accepted as

an issue for investigation by the agency, and thus will not be addressed

as a separate issue of discrimination.