0120080676
09-25-2009
Terrie Dawson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Terrie Dawson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080676
Agency No. 1F-908-0014-07
DECISION
On November 19, 2007, complainant filed an appeal from the agency's
October 16, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the agency properly dismissed
complainant's claim regarding the abolishment of her bid position for
untimely EEO Counselor contact; and (2) whether the agency properly
found that she was not subjected to discrimination based on reprisal
for her prior EEO activity when she was bypassed for full tour overtime.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processing Clerk at the agency's Processing and
Distribution Center in Long Beach, California. Complainant filed a formal
complaint dated May 15, 2007, alleging that she was discriminated against
on the basis of reprisal for prior protected EEO activity arising under
Title VII when:
(1) On or around February 27, 2007, she was bypassed for full tour
overtime; and
(2) Management failed to abolish all remaining clerk jobs when her job
was abolished in October 2002.
On May 29, 2007, the agency accepted claim (1) for investigation. On June
22, 2007, the agency agreed to include claim (2) as an accepted claim,
but the agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) finding no discrimination. The agency's decision affirmed
its previous dismissal of claim (2). With respect to claim (1), the
agency's decision found that complainant failed to establish a prima
facie case of discrimination based on reprisal for prior protected EEO
activity. The agency's decision also found that complainant failed to
establish that the agency's legitimate, nondiscriminatory reasons for
denying her overtime on the date in question were a pretext for unlawful
discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The agency submitted
a statement urging the Commission to affirm its final decision because
complainant failed to establish pretext.
ANALYSIS AND FINDINGS
As this is an appeal from a 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. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Claim (2)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. McLouglin v. Department of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
Based on the record before us, we find that complainant should have
reasonably suspected that discrimination occurred when agency officials
abolished her bid position in October 2002.1 However, she did not initiate
EEO contact regarding this claim until June 9, 2007, well after the
expiration of the forty-five (45) day limitation period. Complainant
failed to offer an adequate explanation for the delay in contacting a
counselor; consequently, we find that agency properly dismissed claim
(2) for failure to initiate timely EEO Counselor contact.
Claim 1
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. A Distribution Operations
Manager (MDO1) submitted a statement into the record indicating that
management maintains an overtime desired list. MDO1 indicated that
overtime is given "based on seniority and non-scheduled days off,"
and management "rotates the employees for any full tour overtime."
A second Distribution Operations Manager (MDO2) similarly stated that
management follows an overtime desired list and rotates employees.
MDO1 denied improperly bypassing complainant for full tour overtime
on February 27, 2007. She stated that complainant's non-scheduled
off- days during the relevant time period were Tuesday and Wednesday,
and complainant specifically requested to work full tour overtime on
Wednesday, February 28, 2007. MDO1 stated that management "does not
schedule employees to work 7 days without a day off," and, because she
was scheduled to work full tour overtime on Wednesday, February 28, 2007,
complainant was not scheduled to work full tour overtime on Tuesday,
February 27, 2007.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Upon review, we concur with the agency's determination
that complainant failed to establish pretext. We also find that the
record is devoid of any evidence that the agency's actions were motivated
by discriminatory animus or a retaliatory motive. In this regard,
we note that complainant has worked overtime in the past and that she
worked full tour overtime on Wednesday, February 28, 2007.
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's decision finding no discrimination was
proper and it is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_____09/25/09_____________
Date
1 Complainant maintained that, on May 16, 2007, she discovered that
management had failed to abolish all remaining clerk jobs when her job
was abolished in October 2002. As noted above, the agency, on June 22,
2007, agreed to include this claim as an accepted claim with claim (1)
for which complainant had initiated counseling on April 1, 2007. A review
of complainant's formal complaint, however, reveals her assertion that,
in September 2002, she was a participant in a successful EEO case against
the agency. According to complainant, on October 15, 2002, within two
weeks of the EEOC notifying the agency of the complainant's success in the
aforementioned case, she, as well as most of the other participants in
the case, was notified by management that her bid (manual distribution)
was being abolished. Complainant accused management of not following
the Collective Bargaining Agreement and of specifically targeting the
participants in the successful EEO case. After discussing several
subsequent events, complainant stated that "[a]s time passed and more
zones were decentralized the abolished clerks realized that management had
lied about the abolishments [sic] in that no other clerks whose principal
assignment areas that had been decentralized were being abolished although
the work in their principal assignment area had vanished."
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0120080676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080676