Yvonne D. Nelson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01990915 (E.E.O.C. Dec. 8, 2000)

01990915

12-08-2000

Yvonne D. Nelson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.


Yvonne D. Nelson v. United States Postal Service

01990915

December 8, 2000

.

Yvonne D. Nelson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area)

Agency.

Appeal No. 01990915

Agency No. 4H370009597

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) 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. and Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleged that she was discriminated against on the bases

of race (African American), sex (female), reprisal (prior protected

activity) and disability (dog bites resulting in injury to right leg,

post traumatic stress and depression) when on December 12, 1996, she

was issued a notice of removal.

The record reveals that during the relevant time, complainant was employed

as a Carrier Technician, PS-6, at the agency's Highland Station facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on March 23, 1997.

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, the agency issued a final decision. In its FAD, the

agency concluded that complainant failed to satisfy the burden of proving

by a preponderance of the evidence that she was discriminated against

as referenced above. It is from this FAD, that complainant now appeals.

Although the initial inquiry in a discrimination case usually focuses

on whether complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated

a legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether complainant has established

a prima facie case to whether she has demonstrated by preponderance of

the evidence that the agency's reasons for its actions merely were a

pretext for discrimination. Id.; see also United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Accordingly, without addressing whether complainant was an individual

with a disability or otherwise established a prima facie case of

discrimination on any basis, we find that the agency has articulated

a legitimate nondiscriminatory reason for issuing complainant a notice

of termination; namely, that she made threatening statements to another

employee. The record reveals that on June 18, 1996, complainant angrily

threatened to �shoot up the place if they didn't leave [her] the f---

alone.� Later that day, complainant was overheard saying that �[she]

could understand how [postal] employees who had guns would try to use

them, because if [she] had one [she] might would hurt someone.�

The agency submits uncontroverted evidence of its �zero tolerance�

policy and that four employees who made confirmed verbal threats

were also issued notices of termination, and thereafter terminated.

(Report of Investigation p.6). Complainant fails to proffer any

evidence which would establish that the agency's reason is a pretext

for discrimination. Complainant merely states that she was singled out.

In the related case of Nelson v. United States Postal Service, EEOC

Petition No. 01993683 (__________, 2000), we affirmed the factual

findings of an EEOC Administrative Judge who, after a hearing on

the merits of another complaint filed by complainant, concluded that

complainant made the threats at issue. We take judicial notice of this

finding of fact. Moreover, we conclude that complainant failed to meet

her burden of establishing that the agency's issuance of the notice of

removal pursuant to its zero tolerance policy is a pretext for race,

sex or disability discrimination or retaliation.

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 (M0900)

The Commission may, in its discretion, reconsider the decision in this

case if 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 8, 2000

Date

1 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.