01a55890
02-28-2006
Paula M. Mullen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paula M. Mullen v. United States Postal Service
01A55890
February 28, 2006
.
Paula M. Mullen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55890
Agency No. 1H-343-0018-04
DECISION
Complainant filed an appeal with this Commission from an August 11,
2005 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), color (black), age (D.O.B. June 8,
1953), and in reprisal for prior EEO activity when on June 7, 2004,
a coworker threatened her and management failed to take any action.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing but subsequently withdrew her request
for a hearing and requested a decision by the agency. In a June 24,
2005 Order of Dismissal, the AJ dismissed the request for hearing and
remanded the case to the agency for issuance of a decision by the agency.
In its decision finding no discrimination, the agency concluded that
complainant failed to establish a prima facie case of race, color, age,
or reprisal discrimination. The agency determined that complainant
failed to show that she was treated differently from similarly situated
employees who were not members of her protected groups. Regarding age,
the agency specifically stated that complainant failed to establish
a prima facie case of age discrimination by failing to show that but
for her age, management would have handled the incident differently.
Regarding reprisal, the agency stated specifically that complainant
failed to establish a prima facie case because she had not shown there
was a causal connection between the protected activity and the agency's
actions. The agency also concluded that there was no evidence in the
record that complainant was subjected to an adverse employment action,
noting also that there was no indication that either complainant or
the coworker were in duty status. The agency also noted that the agency
conducted an internal investigation of the alleged threat. The agency
further noted that the Postal Inspection Service also was involved in
its own investigation and found no dereliction of duty by management to
provide a safe work environment.
The agency further concluded in its decision that complainant had not
shown that the agency's actions were motivated by unlawful discrimination.
In her affidavits, complainant stated that she had a conversation
with the Manager of Distribution Operations (MDO) in which she told
the MDO that she knew that she had a relationship with the coworker.
Complainant's affidavits also reflect that the MDO called the coworker
and the coworker called complainant right back and threatened her
by telephone. Complainant also stated in her affidavits that if she
were younger, White or Hispanic, the matter would have been handled
differently. Complainant submitted documents indicating that the coworker
had apparently been arrested previously for assault and burglary. In a
letter to the agency, complainant stated that the coworker had violent
tendencies and behavior that he had exhibited at work before.
The record reveals that complainant received the allegedly threatening
telephone call while she was in off duty status and that complainant
reported the incident to the police on June 24, 2004.
To establish a prima facie case of race or color discrimination, a
complainant must show the following: (1) complainant was a member of the
protected class; (2) an adverse action was taken against complainant;
(3) a causal relationship existed between complainant's membership in
the protected class and the adverse action; and (4) other employees
outside of complainant's protected class were treated differently.
In order to establish a prima facie case of age discrimination,
complainant must show that complainant was over 40 years of age; that
complainant was subjected to an adverse employment action; and that
complainant was treated less favorably than other similarly situated
employees younger than complainant. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000); O'Connor v. Consolidated Caterers
Corp., 517 U.S. 308 (1996).
A complainant can establish a prima facie case of reprisal discrimination
by showing that: (1) complainant engaged in a protected activity; (2) the
agency was aware of complainant's protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4)
a nexus exists between the protected activity and the adverse action.
Where the agency denies that its decisions were motivated by
discrimination and there is no direct evidence of discrimination, the
Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under the McDonnell
Douglas three-part analysis, for complainant to prevail, complainant
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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). In establishing pretext, complainant may show directly that a
discriminatory reason more likely motivated the agency or indirectly,
by showing that the agency's explanation is unworthy of credence.
Because this is an appeal from an agency decision issued without a
hearing pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. See 29 C.F.R. � 1614.405(a).
Upon review, we find that complainant failed to establish a prima facie
case of discrimination. The record establishes that the agency conducted
investigations of the alleged threatening incident. The record also
reveals that the alleged threatening telephone call from the co-worker
to complainant's cellular telephone occurred while complainant was in
an off duty status and concerned a personal matter. The record further
reveals that the taped telephone message that complainant described
as threatening was not determined by the agency to be threatening.<1>
Even assuming that complainant established a prima facie case on each
basis, complainant failed to show by a preponderance of the evidence
that discrimination occurred in the way the investigation was conducted
by the agency. Complainant has also not shown that the manner in
which the co-worker's alleged threat was handled or how the co-worker
himself was treated by the agency as a result of his alleged threat was
motivated by discriminatory animus. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2006
__________________
Date
1A police incident report reveals that the taped telephone message from
the co-worker stated: "I don't know what kind of fucking shit you did,
but that's all right. I got something for ya. That's some good shit
you did." The record reveals that this call occurred after complainant
called the Manager of Distribution Operations and inquired about a
personal matter.