01995157
12-07-2001
Terry D. Kinslow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Terry D. Kinslow v. United States Postal Service
01995157
December 7, 2001
.
Terry D. Kinslow,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01995157
Agency No. 4J460002798
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of her race (Black), sex (female), and reprisal
for her husband's prior EEO activity when:
On September 18, 1997, she discovered that her name had been removed from
the active register, resulting in her being denied career employment; and
she was told that the action was taken because a negative letter was
placed in her file by her former supervisor (S1) stating that she had
failed to report to work on July 4, 1993, and because she failed to
report for a drug test in May 1996.
The record reveals that during the relevant time, complainant was employed
as a Casual Clerk at the agency's Indianapolis, Indiana Processing and
Distribution Center. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on January 22, 1998. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision
(FAD).
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination based on her race and sex,
noting that she failed to name any similarly situated individuals
outside of her protected classes who were treated more favorably under
similar circumstances. The agency also found that complainant failed
to establish a prima facie case of reprisal discrimination in that she
did not demonstrate that the named responsible management officials had
any knowledge of complainant's husband's prior EEO activity.
On appeal, complainant, through her attorney, argues that she did
establish a prima facie case of reprisal discrimination. Specifically,
she contends that S1 certainly had no knowledge of her husband's prior
EEO activity, and emphasizes that her husband had filed sexual harassment
allegations against S1. The agency requests that we affirm its FAD.
We begin by noting that Title VII prohibits retaliation against someone
so closely related to, or associated with, the person exercising his or
her statutory rights that it would discourage that person from pursuing
those rights. See Kesel v. Department of the Interior, EEOC Appeal
No. 01912190 (October 18 1991); Straining v. United States Postal Service,
EEOC Appeal No. 01842459 (July 10, 1986); Murphy v. Cadillac Rubber &
Plastics, Inc., 946 F. Supp. 1108, 1118 (W.D. N.Y. 1996) (plaintiff
stated claim of retaliation where he was subjected to adverse action
based on his wife's protected activities); EEOC v. Ohio Edison Co., 7
F.3d 541, 544 (6th Cir. 1993) (finding that plaintiff's allegation that
relative's protected activities states a claim under Title VII); Thurman
v. Robertshaw Control Co., 869 F. Supp. 934, 941 (N.D. Ga 1994) (plaintiff
could make out first element of prima facie case of retaliation by showing
that plaintiff's close relative participated in the complaint process);
DeMedina v. Reinhardt, 444 F.Supp. 573 (D.C. 1978) (holding that an
employer is liable for retaliation when it takes adverse employment action
against the spouse of an employee who engages in protected activity).
In the instant case, complainant alleges that she was subjected to
adverse action based upon the protected activities of her husband.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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.
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. 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. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990); Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established a prima facie case
of discrimination based on sex, race and reprisal, we turn to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. The agency's first articulated reason is a negative letter in
complainant's folder regarding her alleged failure to show up to work on
a particular day. The agency's second articulated reason for its action
is complainant's failure to show up for a mandatory drug test. As to the
drug test, the agency has submitted evidence in the form of a letter from
a Human Resources Specialist (H1) that was sent to complainant on April
25, 1996. The letter clearly stated that complainant was scheduled for
a drug test on May 8, 1996, and that failure to report as scheduled
would result in her name being removed from all active registers.
Complainant does not deny having received this letter, but explains that
she contacted H1 to ask to reschedule the appointment because she was
going to be on vacation, and that her request was denied. H1 explains
that she told complainant that her drug test could be rescheduled for
earlier, but not later, than May 8, 1996. Complainant does not dispute
that she was told she could reschedule the test for an earlier date.
The record reveals that complainant had nearly two weeks during which
time she could have rescheduled the drug test, and she fails to explain
why she did not arrange to do so. Complainant asserts that a nurse in
the medical department assured her that other employees had been allowed
to reschedule their drug tests, and she argues that the unusually rigid
stance on rescheduling a drug test was taken with regard to herself
because of reprisal for her husband's prior EEO activity. We note that
complainant was informed that she could reschedule the test provided she
re-scheduled it for an earlier, and not a later, date. We find that
she has not met her burden of demonstrating by a preponderance of the
evidence that the agency acted out of discriminatory animus toward her
race, sex or her husband's prior EEO protected activity.
We note that the only reason cited by the agency for removing complainant
from the register in May 1996 was her failure to take the drug test.
We do not find evidence of record supporting complainant's assertion that
the negative letter in her file regarding a failure to report to work on
July 4, 1993 in fact played any role in the agency's decision to remove
her from the active register. Accordingly, we find that complainant
has not met her burden to establish pretext.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
December 7, 2001
__________________
Date