01971184
09-20-1999
Yvette Morris-Knighton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yvette Morris-Knighton v. United States Postal Service
01971184
September 20, 1999
Yvette Morris-Knighton, )
Appellant, )
) Appeal No. 01971184
v. ) Agency No. 4J-600-1352-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On November 18, 1996, Yvette Morris-Knighton (the appellant) timely
filed an appeal with the Equal Employment Opportunity Commission
(the Commission) from a final agency decision (FAD) dated October 18,
1996, concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency had discriminated against
her based on race (black), sex (female) and reprisal (previous EEO
activity) when on July 15, 1994, she was denied conversion to a Part-Time
Flexible (PTF) Clerk.
BACKGROUND
At the time of the complaint, appellant was a Transitional Mail Processor
at the Carol Stream, Illinois Processing and Distribution Center.
On June 14, 1994, she wrote a letter to the Manager, Human Resources
for the Northern Illinois District (Manager #1) requesting that she be
converted from her present status as a Transitional Employee to that
of a Part-Time Flexible Clerk. Appellant apparently expected that,
pursuant to the settlement of a previous EEO complaint, she would be
converted to "career status" as had been "persons similarly situated"
to her with "respect to Examination and Work eligibility." On July 15,
1994, she received a reply from Manager #1 which informed her that as
part of the EEO Settlement, she had been "appointed as a Transitional
Employee in the Computerized Forwarding Unit." The letter also stated
that she was currently on four different position registers for seven
different postal facilities and that when her score on those registers
was reached, she would be notified by mail. She was not converted to
the PTF Clerk position, as she had requested.
She filed a formal complaint on November 17, 1994, alleging discrimination
on the bases of race, sex and retaliation when she was denied conversion
to a PTF Clerk. The agency accepted the complaint for investigation
and processing. At the conclusion of the investigation, the agency
issued a copy of its investigative report and notified appellant of her
right to request an administrative hearing. After appellant requested
a decision on the record, the agency issued its FAD on October 18, 1996.
The EEO Settlement Agreement to which appellant referred in her June 14,
1994, letter was dated March 12, 1994, and was signed by appellant and
her representative. It specified that she would receive a Temporary
Employee (TE) appointment, effective March 19, 1994, as a TE Clerk in
the Computerized Forwarding Service Unit. The agreement does not mention
a future conversion to "career status."
In its FAD, the agency found that the appellant had failed to establish a
prima facie case of race and sex discrimination because she was unable
to demonstrate that she was treated less favorably than any other
employees outside of her protected groups. In a comparison between
appellant and five employees who had been hired at the same time as or
after appellant and who had been converted to career status, the agency
noted that all five had higher test scores than appellant on the register.
Therefore, the agency stated that appellant had failed to establish that
she was similarly situated to any other comparison employees. The FAD
further stated that appellant had failed to show that the legitimate,
nondiscriminatory reason articulated by the agency for its decision
not to convert her to a PTF Clerk was a pretext for discrimination.
Regarding appellant's reprisal allegation, the FAD found that appellant
had failed to establish a prima facie case of retaliation in that the
management official that appellant named as the responsible official, a
different Manager in Human Resources for the Northern Illinois District
(Manager #2,) was unaware of appellant's previous EEO activity.
The appellant filed this appeal, without comment.
ANALYSIS AND FINDINGS
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 appellant 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 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 appellant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
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).
Here, in response to appellant's claims of discrimination, the agency
presented evidence that appellant had a test score of 70.30 on the "old
clerk register," which was in effect through August 18, 1994, when the
"new clerk register" took effect. Appellant had not been tested for
her score on the new register. Management officials testified that
when calling applicants for employment for interviews, they must start
with the highest test scores and then "continue downward." The record
contains evidence that shows that comparison employees who were hired
at approximately the same time as appellant all had higher test scores.
Two white males who were converted to career status had scores of 86.80
and of 98.10. Three black females had scores of 78.70 and 85.60 on
the old register and of 90.80 on the new register. All three were
converted to career status. Appellant's score on the register had
not been reached because the agency had not yet exhausted the pool of
candidates who had higher test scores, which was why she had not been
converted to career status. We find that the agency has articulated a
legitimate, nondiscriminatory reason for not having converted appellant
to career status upon receiving her request to do so.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. Therefore, the agency's determination
that appellant failed to establish that she was discriminated against
on the bases of race and sex was correct.<1>
To establish a prima facie case of reprisal, an appellant must show that:
1) she was engaged in protected activity; 2) the alleged discriminating
officials were aware of the protected activity; 3) the appellant
was subsequently subjected to adverse treatment; and 4) the adverse
action followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
Appellant had previously filed an EEO complaint against the agency,
which resulted in an EEO Settlement Agreement and her placement as
a Transitional Employee. Although in her complaint appellant had
named Manager #2 as the official responsible for the discrimination,
the record reveals that in actuality Manager #1 was the official who
issued the July 15, 1994, letter to appellant denying her conversion to
career status. Manager #2 testified that she was unaware of appellant's
previous EEO activity, and the agency found that appellant's prima facie
case of retaliation failed on this basis. The record shows, however,
that Manager #1 was aware of appellant's previous EEO activity, as he
referenced it in his July 15, 1994, letter denying appellant conversion
to career status. The appellant was subjected to adverse treatment in
that she was not converted to career status, and this action is close
enough in time to the EEO Settlement Agreement and previous EEO activity
to infer retaliatory motivation. Therefore, appellant has established
a prima facie case of retaliation.
Appellant failed, however, to overcome the legitimate, nondiscriminatory
reason given by the agency for not converting her to career status,
namely, that she had a low score on the register which had not yet been
reached in calling applicants for employment. The appellant did not show
that it was a pretext for discrimination. Therefore, appellant has not
proven that she was subjected to discrimination based on reprisal.
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 20, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We find that the agency erred to the extent that it found that
appellant had not established a prima facie case of race and sex
discrimination because she was unable to demonstrate that she was treated
less favorably than any comparative employee. We note that to establish
a prima facie case, appellant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. Furnco, 438 U.S. at 576. It is not necessary for
the appellant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 116
S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson
v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).