Ruth A. Browder, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 13, 1999
01975513 (E.E.O.C. Oct. 13, 1999)

01975513

10-13-1999

Ruth A. Browder, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ruth A. Browder v. United States Postal Service

01975513

October 13, 1999

Ruth A. Browder, )

Appellant, )

)

v. )

) Appeal No. 01975513

William J. Henderson, ) Agency No. 1C-441-1159-95

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

INTRODUCTION

Appellant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her allegation that the agency discriminated against her

on the bases of her color (light-skinned Black) and in retaliation for

engaging in prior EEO activity in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The appeal

is accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001. For the reasons set forth below, we AFFIRM the FAD.

ISSUE PRESENTED

The issue presented is whether appellant proved that she was discriminated

against, as referenced above, when on July 6, 1995, she was scheduled

for a Fitness for Duty Examination (examination).

BACKGROUND

In 1995, appellant was a Distribution Machine Clerk at the agency's

General Mail Facility in Cleveland, Ohio. She began working for the

agency in July 1966. On July 6, 1995, management directed her to report

for an examination that was scheduled for July 15, 1995. Although she

maintained that there was no basis for the examination, appellant complied

with management's order. According to appellant, she was never told

the reason for the examination and was denied access to the results.

On appeal, she maintained that management ordered her to undergo the

examination in order to demean "and [to] show their authority over" her.

A-1, Manager, Distribution Operations, testified that appellant

was ordered to undergo the examination because of concerns that

she and A-2, appellant's immediate supervisor, had about appellant's

behavior. According to A-1, appellant's co-workers were complaining that

she was not doing her job, she isolated herself from her supervisors

and co-workers by not speaking to them, and she "turned against her good

friend." A-1 and A-2 both concluded that it was in the best interest of

appellant and the facility that she undergo a psychological evaluation.

A-2 stated that appellant's problems with her co-workers had created

a hostile work environment. She testified that one employee accused

appellant of threatening her. Consequently, a determination was made,

by both management and the union stewards, to schedule appellant for

an examination. A-2 testified that appellant had already been sent to

the Employee Assistance Program (EAP). She also indicated that there

had been an ongoing dialogue between management and the union about

appellant's behavior. Finally, A-2 maintained that it was management's

intent to help appellant and that she was informed of the reasons for

the examination.

The record contains a letter, written by B-1, the Associate Area Medical

Director, which indicated that appellant was not a danger to herself

or others. B-1's letter recommended, however, that: (1) appellant be

referred to EAP for counseling and further evaluation; (2) her progress

and treatment be monitored; and (3) she undergo a physical examination

by her private physician to rule out any organic causes for the changes

in her behavior.

ANALYSIS AND FINDINGS

The Commission has reviewed the record and finds that the FAD addressed

the facts and correctly applied the appropriate regulations, policies

and laws. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425

F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976).<2>

Employers generally have broad discretion to set policies and carry

out personnel decisions, and should not be second-guessed by reviewing

authorities absent evidence of unlawful motivation. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).

We find that the agency offered legitimate, nondiscriminatory reasons for

its actions and that appellant failed to establish pretext. On appeal,

appellant maintained that "management interfered with my personal life, by

calling my aunt to tell her that I wasn't [sic] talking to anyone at work

(which was not true)." Although one could certainly question whether it

was necessary to contact appellant's aunt, the fact that the telephone

call was made, corroborates, to some extent, the testimony of A-1 and

A-2 that management was concerned about appellant's behavior. Finally,

we note that, other than her bare assertion that management's actions

were based on her color and previous EEO activity, appellant offered no

persuasive evidence that these factors played any role in the decision

to schedule her for an examination.

CONCLUSION

Accordingly, we AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 this

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 (S0993)

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. 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 (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:

Oct. 13, 1999

DATE Carlton Hadden, Acting Director

Office of Federal Operations

1At the conclusion of the agency's investigation, appellant was provided

with a copy of the investigative file. Subsequently, she requested a FAD

without an administrative hearing. The agency's FAD found that she had not

been discriminated against.

2We find, however, that the agency erred in concluding that appellant

did not establish a prima facie case of discrimination based on color

merely because she did not identify similarly situated co-workers, who

were not light-skinned Blacks, but were treated in a more favorable

manner. To establish a prima facie case, appellant need only present

evidence which, if unrebutted, would support an inference that the

agency's actions resulted from discrimination based on her race and color.

Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). It is not

necessary for her to show that a comparative individual, from outside of

her protected group, was treated differently. O'Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308 (1996); Enforcement Guidance on

O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n.4

(September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159

(7th Cir. 1996).