The Estate of Mary L. Jones-Barker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionOct 2, 2009
0120080322 (E.E.O.C. Oct. 2, 2009)

0120080322

10-02-2009

The Estate of Mary L. Jones-Barker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


The Estate of Mary L. Jones-Barker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120080322

Hearing No. 410-2006-00225X

Agency No. 4H-300-0104-06

DECISION

On October 18, 2007, complainant's estate filed an appeal from

the agency's September 24, 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.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a City Letter Carrier at the agency's Briarcliff Post Office

in Atlanta, Georgia. On or around March 22, 2006, complainant filed an

EEO complaint alleging that she was discriminated against on the basis

of reprisal for prior protected EEO activity under Title VII when, on

February 1, 2006, complainant was instructed to clock-out, leave the

building, and not report back to work until further notice because she

had rejected a limited duty job offer.

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). Complainant requested

a hearing, but the AJ denied the hearing request after complainant's

death, prior to the hearing, on the grounds that complainant's estate

failed to respond to the AJ's Show Cause Order "or otherwise name a

representative of the estate to move forward with the case." The AJ

remanded the complaint to the agency, and the agency issued a final

decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded

that complainant failed to prove that she was subjected to discrimination

as alleged. Specifically, the agency's decision found that complainant

established a prima facie case of discrimination based on reprisal for

prior protected EEO activity but failed to establish that the agency's

legitimate, nondiscriminatory reasons for its actions were a pretext

for unlawful discrimination.

CONTENTIONS ON APPEAL

Neither complainant's estate nor the agency submitted a statement on

appeal.

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").

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 based on reprisal for prior protected EEO activity, we

find that the agency articulated legitimate, nondiscriminatory reasons

for its actions. Complainant's supervisor stated in the record that,

on January 31, 2006, complainant rejected the agency's limited duty

job offer. As a result, the supervisor did not have any work for

complainant within her medical restrictions, and the Manager Customer

Service ordered the supervisor to advise complainant not to report to work

until further notice. The supervisor further stated that complainant

ignored her instructions and reported for work on February 1, 2006.

The supervisor then ordered complainant to leave, reiterating that she

was not to return to work until further notice because complainant had

rejected the agency's limited duty job offer, and management did not have

any work for complainant within her medical restrictions at that time.

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 find that the record

is devoid of any evidence that the agency's actions were motivated by

discriminatory animus. We note that both complainant's supervisor and the

Manager Customer Service stated in the record that they were not aware of

complainant's prior EEO activity. Complainant's estate did not submit

a statement on appeal, and, as a neutral party, we are not persuaded,

based on the record of investigation, that complainant has shown that the

agency's articulated reasons for its actions were a pretext for unlawful

discrimination based on reprisal for her prior protected EEO activity.

CONCLUSION

Accordingly, based on our thorough review of the record, the Commission

determines that the agency's final decision finding no discrimination

was proper and 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

___10/02/09_______

Date

2

0120080322

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120080322