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).