05A40135
01-12-2004
Valerie Dylan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Valerie Dylan v. United States Postal Service
05A40135
January 12, 2004
.
Valerie Dylan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 05A40135
Appeal No. 01A34129
Agency No. 4-H-320-0002-02
DENIAL OF REQUEST FOR RECONSIDERATION
On November 3, 2003, Valerie Dylan (complainant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC or
Commission) to reconsider the decision in Valerie Dylan v. United
States Postal Service, EEOC Appeal No. 01A34129 (September 30, 2003).
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. 29 C.F.R. � 1614.405(b).
In her complaint, the complainant alleged that she had been subjected
to unlawful discrimination, in the form of retaliation for engaging in
protected equal employment opportunity (EEO) activity, when (1) she
was denied a transfer due to an unfair evaluation; (2) she was told
that her medical documentation was not acceptable; (3) she received
a note in her post office box stating that if box information was not
updated, it would be closed; and (4) she was continuously harassed by her
supervisor and postmaster. After an investigation into the complaint,
the agency issued a final decision finding no discrimination. On appeal,
the Commission affirmed the agency's final decision, noting that the
preponderance of the evidence did not support the complainant's claims.
In the instant request for reconsideration, the complainant restates her
allegations, but fails to demonstrate that the Commission's previous
decision involved a clearly erroneous interpretation of material fact
or law, or that it will have a substantial impact on the policies,
practices, or operations of the agency. We note that in claims such as
claims (1) through (3) above, which allege disparate treatment based upon
retaliation for participation in the EEO process, and where there is an
absence of direct evidence of such retaliation, the allocation of burdens
and order of presentation of proof is a three-step process. Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass. 1976) (extending application of the disparate treatment
analytical framework described in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973), to claims of retaliation), aff'd, 545 F.2d 222
(1st Cir. 1976). First, complainant must establish a prima facie case of
retaliation 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. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000). In this case, even assuming the complainant
established a prima facie case of retaliation, the agency articulated
legitimate, nonretaliatory reasons for its actions, and the complainant
failed to carry her burden to show that those reasons were merely pretext
for unlawful discrimination.
We further note that, as for claim (4) above, which states a claim
of hostile work environment harassment in retaliation for engaging in
protected EEO activity, in order to establish such a harassment claim,
the complainant must show that: (1) she engaged in prior EEO activity;
(2) she was subjected to unwelcome conduct related to his prior EEO
activity; (3) the harassment complained of was based on her prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Roberts v. Department of Transp.,
EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. Dundee,
682 F.2d 897 (11th Cir. 1982)). In this case, there is no indication in
the record on appeal that the complained-of agency actions were either
based upon the complainant's prior EEO activity or related to her prior
EEO activity. Accordingly, she has not established a prima facie case
for her claim of retaliatory hostile work environment harassment, and
therefore cannot prevail on this claim.
Therefore, after a review of her request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A34129 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
January 12, 2004
Date