01a00149
03-30-2000
Vissiliki K. Fuller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vissiliki K. Fuller, )
Complainant, )
) Appeal No. 01A00149
v. ) Agency No. 4F-907-1133-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (White), national origin (Greek), sex (Female), reprisal
(prior EEO activity), and age (DOB: March 28, 1943), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether complainant showed by preponderant evidence that the agency
discriminated against her on the bases of race, national origin,<2> sex,
age, and reprisal.<3>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Postmaster, at the agency's Beverly Hills, California Post Office.
Complainant alleges she was discriminated against when: (1) on November
30, 1994, a management position was authorized for the Beverly Hills
Post Office after she was repeatedly denied authorization for a much
needed ad hoc EAS-17 management position from 1992 through 1994; (2) on
December 16, 1994, she was required to meet with the Employee Assistance
Program (EAP) coordinator by a Manager of Post Office Operations (MPOO);
(3) on December 19, 1994, a press release about her was issued to two
newspapers; (4) on December 23, 1994, she was denied use of a recorder or
secretary for transcribed notes at a meeting to which she was summoned;
(5) on unspecified dates, employees allegedly gave wrong information
about her to telephone inquiries; (6) in December 1994, during interviews
for two Postmaster, EAS-26, positions for which she was not selected,
complainant was asked about her placement on administrative leave and
past EEO activity;<4> and (7) a financial audit of the Beverly Hills
Post Office was conducted by a Financial Manager following a Commission
ruling against the agency in complainant's prior EEO complaint.
Believing she was a victim of discrimination, complainant sought EEO
counseling on September 15, 1994. Subsequently, she filed a formal
complaint on June 16, 1995. The agency rejected her complaint for
investigation. Complainant appealed the agency's dismissal to the
Commission. On June 24, 1996, the Commission affirmed the agency's
decision to dismiss the complaint. Complainant then filed a Request
for Reconsideration. On October 8, 1998, the Commission reversed the
agency's dismissal of complainant's complaint and remanded the case
for investigation. At the conclusion of the investigation, the agency
provided complainant with a copy of the investigation as well as her
appeal rights on September 1, 1999. Complainant did not provide the
agency with a request for a hearing before an Administrative Judge.
Accordingly, the agency issued its FAD.
The FAD concluded that complainant failed to establish a prima facie case
of race, sex, age, and reprisal discrimination because she presented no
evidence that similarly situated individuals not in her protected classes
were treated differently under similar circumstances. The FAD further
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The FAD then determined that complainant failed to
satisfy her burden of proving by a preponderance of the evidence that
the agency's reasons were mere pretext for discrimination or that she
was the victim of intentional discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
Complainant alleges disparate treatment on the bases of race, national
origin, sex, age, and reprisal. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to
prevail, she 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 Constr. 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 Dep't 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 Cen. v. Hicks,
509 U.S. 502 (1993). Under the ADEA, the complainant must show that
her age was a determining factor in the agency's removal action, that
is, considerations of age made a difference in the agency's action.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role
in the process and a determinative influence on the outcome").
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 legitimate, nondiscriminatory reasons for the personnel
actions 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. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant has established a prima facie case of
race, national origin, sex, age, and reprisal discrimination, the burden
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. As to claim (1), the District Manager argued that it
had no knowledge of complainant's request and that it never disapproved
of her request, however, the MPOO averred that complainant's request
as well as all other requests were denied because the agency was under
reorganization. Complainant was referred to EAP as alleged in claim
(2) because the MPOO heard complainant being questioned about financial
problems in her office and thought that she might need EAP assistance.
In claim (3), the District Manager averred that he was questioned by
the outside press regarding the status of the Beverly Hills Postmaster
and provided general information and did not prepare a press release.
As to the denial of complainant's request to record or have a secretary
present during an informal meeting alleged in claim (4), the agency
argued that it was not its policy to have informal meetings recorded.
In claim (5), complainant alleged that employees gave wrong information
to telephone inquiries regarding her employment status. The MPOO averred
that he contacted the individual providing the incorrect information
and informed her not to divulge any information and to merely state
that complainant was not available because she was on leave. Finally,
regarding claim (7), the agency argued that the financial manager named
by complainant averred that she was not involved in any financial audit of
the agency's facility. Upon review of the record, we find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
The burden now shifts to complainant to show that the agency's reasons
were pretext for discrimination. Upon review of the record, we find
that complainant fails to provide any evidence that the agency's reasons
were pretext. Accordingly, the Commission finds that complainant has
failed to show that the agency's action was motivated by a discriminatory
animus regarding claims (1)-(5) and (7).
As to claim (6), complainant alleged that during her interviews for two
Postmaster positions issues such as her placement on administrative leave
and prior EEO complaints were raised; and that due to these issues,
she was not selected for two Postmaster positions. The agency found
that it did not discriminate against her because no one in the Beverly
Hills office had any part in the decision process. The Commission finds
that the agency ruled on the merits of complainant's nonselection claims
and that this ruling was premature. In particular, we note that in the
Notice of Final Interview, the agency directed complainant to contact
the EEO offices in Colorado and Texas if she wished to pursue her claims
of discrimination regarding the nonselections rather than transferring
the claims to those EEO offices.<5> Accordingly, the Commission vacates
the agency's FAD regarding complainant's claim (6).
CONCLUSION
Therefore, after a careful review of the record, we affirm the FAD with
respect to claims (1)-(5) and (7), however, the Commission finds that
the FAD's ruling on the merits of claim (6) was premature.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2Although complainant also alleged discrimination on the basis of race
(Greek), the Commission considers the term "Greek" to be a national
origin rather than a racial group.
3The record indicates that complainant filed a prior complaint, Case
No. 600112-92.
4Complainant was directed to contact the EEO offices of those other
facilities in order to pursue claims of discrimination regarding the
nonselections for the Postmaster positions.
5 The Commission further notes that if complainant wishes to pursue
her claims of nonselection, to the extent she has not done so already,
she should contact the EEO Complaints Processing Offices in Denver,
Colorado and Austin, Texas, within 15 days of receipt of this decision.
The date of contact shall be the date complainant initially contacted
the EEO office in this instant matter.