0120122918
10-14-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122918
Hearing No. 450-2011-00125X
Agency Nos. 4G-752-0318-10
4G-752-0091-11
DECISION
Complainant timely filed an appeal from the Agency's June 4, 2012, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the decision of the Administrative Judge, that Complainant had not established that she had been discriminated against as alleged, is supported by the substantial evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an unassigned City Letter Carrier at the Agency's Mesquite, Texas, Post Office. She has worked for the Agency since 1986, and was assigned to the Mesquite Post Office after she was displaced from New Orleans, Louisiana, following Hurricane Katrina in 2005. In 2006, she was downgraded from a Level 6 to a Level 5 Carrier, when she did not bid on any open Level 6 route and was assigned to a regular route that was a Level 5 position. The downgrade was the subject of a previous appeal, in which a finding that Complainant had not been discriminated against was affirmed. EEOC Appeal No. 0120073554 (Oct. 23, 2007), req. to recon. denied, EEOC Request No. 0520080150 (Dec. 9, 2008).
On October 5, 2010, Complainant filed an EEO complaint (Agency No. 4G-752-0318-10) (complaint #1) alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when:
1. on June 22, 2010, Complainant was placed into a lower-level position;
2. on or about September 20, 2010, she was denied the opportunity to serve as an acting supervisor (204-B);
3. on October 18, 2010, she was told not to take her lunch; and
4. on October 20, 2010, she was instructed to move toward the center of the work room floor for a stand-up talk.
The Agency issued a letter of Partial Acceptance and Partial Dismissal on November 1, 2010, in which it accepted issues 1, 2, and 3 for investigation. The Agency dismissed issue 4, citing 29 C.F.R. � 1614.107(a)(1), finding that Complainant had failed to state a claim because she had not been subjected to an adverse action. The Agency revised its Partial Acceptance/Partial Dismissal by letter dated January 14, 2011, in which it additionally dismissed issue 1, again citing 29 C.F.R. � 1614.107(a)(1), and finding that this claim was the same claim as that raised in the complaint at issue in EEOC Appeal No. 0120073554.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ issued the Acknowledgment and Order on March 21, 2011, for Hearing No. 450-2011-00125X.
On March 7, 2011, Complainant filed an EEO complaint (Agency No. 4G-752-0091-11) (complaint #2) alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), age (54), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when:
1. on December 29, 2010, she was denied a 204-B position;
2. on January 26, 2011, she was issued a seven-day suspension; and
3. she was dissatisfied with the results of the February 18, 2011, REDRESS (mediation).
The Agency issued a letter of Partial Acceptance and Partial Dismissal on March 21, 2011, in which the Agency accepted issues 1 and 2 for investigation and dismissed issue 3, finding that it failed to state a claim under 29 C.F.R. � 1614.107(a)(1). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. On June 1, 2011, Complainant timely requested a hearing.
Complainant raised the issue of the Agency's partial dismissal of issues 1 and 4 from complaint #1 with the AJ in a Motion dated April 9, 2011. The Agency responded to Complainant's Motion. The AJ issued an Order on Complainant's Motion to Reinstate Dismissed Claims on April 26, 2011. The AJ granted Complainant's Motion with regard to complaint #1, issue 4, and found that Complainant would be allowed to offer testimony about the stand-up talk incident from October 2010 at the hearing. The AJ denied Complainant's Motion with regard to issue 1, and found that Complainant had not shown that she had been downgraded in June 2010, but rather was arguing about the on-going effects of the downgrade from June 2006. Complainant had argued that she was placed in an "unassigned" classification due to the abolishment of routes in June 2010, which would not have occurred absent her previous downgrade.
On April 30, 2011, Complainant requested that the Office of Federal Operations intervene in her hearing, and reverse the AJ's Order with respect to the dismissal of issue 1 in complaint #1. Complainant also raised concerns about the Agency's dismissal of issue 3 in complaint #2. This interlocutory appeal was docketed as EEOC Appeal No. 0120112639 (October 6, 2011).
The AJ issued an Order Consolidating Cases and Dismissal without Prejudice on June 14, 2011. She consolidated Complainant's hearing requests in complaint #1 and #2 under Hearing No. 450-2011-00125X. The AJ then dismissed the hearing requests while EEOC Appeal No. 0120112639 remained open. However, as the regulations found at 29 C.F.R. � 1614.401 do not provide for appeals from rulings made by an AJ while the hearing process is still ongoing, Complainant's appeal was dismissed as premature.
The AJ resumed processing Hearing No. 450-2011-00125X following the dismissal of EEOC Appeal No. 0120112639, and Complainant again raised concerns about issue 3, which had been dismissed by the Agency from complaint #2. On April 11, 2012, the AJ issued an Order on Complainant's Motion to Reinstate Dismissed Claim. The AJ found that the claim underlying Complainant's dissatisfaction with the REDRESS process was directly related to her other claims, and that she was alleging discrimination because she was allegedly not paid for three hours in October 2010. The AJ accepted this issue and added it to those that would be heard.
The AJ held a hearing on April 17, 2012, at which five witnesses testified, and issued a decision on May 7, 2012. In her decision, the AJ found that Complainant was an unassigned City Letter Carrier at the Mesquite Post Office, and that she had engaged in prior protected EEO activity in 2006 and 2008. She was supervised by MO-1 and MO-2 during the relevant time, both of whom were Customer Service Supervisors. Her second-level supervisor was MO-3, the Acting Station Manager during 2008-2010, and the Station Manager from 2010-September 2011. Complainant claimed that MO-3 had asked her if she was interested in working as a 204-B (temporary) supervisor, and that after she had thought about it, she got back to him and answered that she was interested. She claimed that MO-3 then raised the issue of her attendance and told her that it might make her unsuited to supervise (complaint #1, issue 1). She claimed that on October 18, 2010, she was working on the loading dock and was talking on her phone. A temporary 204-B supervisor told her to get off the phone, and MO-1 told her that since she had been on the phone for 25-30 minutes, she should not take a lunch break (complaint #1, issue 2). On October 19, 2010, Complainant's time card had been misplaced and she was unable to clock in at the beginning of her shift. It was located after she had been working for three hours, and she clocked in with it then, but Complainant claimed that she had not properly been paid for the three hours (complaint #2, issue 3, as added by the AJ). On October 20, 2010, Complainant contended that she was singled out to move out of her case and to the center of the workroom floor during a stand-up talk (complaint #1, issue 3). Complainant again inquired about working as a 204-B supervisor, but was denied the opportunity on December 29, 2010, by MO-3, who told her that she had "live" discipline and attendance issues (complaint #2, issue 1). On January 26, 2011, Complainant was issued a seven-day suspension by MO-2 for attendance issues (complaint #2, issue 2). She grieved the suspension and it was reduced to a discussion. In late December 2011, Complainant became ill at work, asked for assistance on her route, and took sick leave. She called in the next day and was required to bring in documentation.
The AJ found that Complainant failed to establish her prima facie cases of race, color, sex, age, or retaliation for her prior EEO activity, because she had not established that any of her allegations were based on her protected classes. The AJ found that Complainant failed to establish that she was treated differently than similarly-situated individuals outside of her protected classes. For instance, she had not shown that any of the other employees outside of her protected classes who were 204-B supervisors had live discipline in their records at the time they were acting as supervisors.
The AJ further found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. MO-3 was the concurring official on the seven-day suspension issued to Complainant in January 2011. Complainant had attendance issues, which had been documented and for which she had received prior discipline. MO-3 testified that he instructed the supervisor to pay Complainant for three hours of pay in October 2010 and believed that it had been done. MO-3 also testified that Complainant approached him about wanting to serve as a 204-B supervisor, but that he told her that because of her issues with attendance, corrective actions, missed deliveries, and his assessment that she lacked leadership ability, he did not believe that she was an appropriate person to serve as a 204-B supervisor. MO-1 testified that he often had to tell Complainant to get off her phone. He denied telling her not to take a lunch, but did testify that he told her to get busy on her route. The AJ found that the evidence in the record established that Complainant was not the only employee instructed to report to the work room floor for the stand-up talk. The AJ concluded that Complainant had not shown any of the Agency's articulated reasons to be pretext for discrimination, and specifically found the testimony of MO-1, MO-2, and MO-3 to be credible.
The Agency subsequently issued a final order on June 4, 2012, adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her statement in support of her appeal, Complainant maintains that she has yet to be paid for the three hours of pay which was improperly documented when her time card was missing. She argues that the AJ should not have found that she was not discriminated against in this regard. She also contends that the seven-day suspension was wrongly issued, and that she was not abusive in her use of sick leave. Complainant argues that no black female Carriers had been 204-B supervisors at the Mesquite Post Office, and that her discipline and attendance record should not have disqualified her. She provides names of employees she claims are comparators who had discipline or attendance issues who had been 204-B supervisors. She also disputes MO-3 testimony that she was not a reliable employee.
The Agency submitted a brief in opposition to Complainant's appeal in which it argues that Complainant has not demonstrated that the AJ's decision was not supported by substantial evidence. It urges the Commission to affirm its final order implementing the AJ's decision.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that, assuming Complainant established her prima facie cases of race, color, sex, age, and reprisal discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The AJ made factual findings following a hearing, and credibility determinations after observing the demeanor of the witnesses. She specifically found the testimony of each of Complainant's supervisors to be credible. Each supervisor testified as to the reasons for issuing the seven-day suspension, the denial of Complainant's request to act as a 204-B supervisor, the request for Complainant move to the work room floor for the stand-up talk, and the direction to stop speaking on her phone and work her route. Complainant has not shown any of the reasons to be pretext for discrimination. While she may disagree with the supervisors' opinions of her merits as an employee, she has not shown that those opinions are rooted in discriminatory animus. The AJ's findings and conclusions of law were supported by substantial evidence of record. We find that Complainant has not provided any basis to disturb the AJ's decision on appeal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we find that the AJ's decision following a hearing is supported by substantial evidence of record, and therefore AFFIRM the Agency's final decision implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 14, 2014
Date
2
0120122918
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122918