0120112180
01-05-2012
Carol V. Sweetenberg, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Carol V. Sweetenberg,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120112180
Agency No. 4C250002910
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s February 3, 2011 final decision 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a City Carrier at the Agency’s Carrier Annex facility in
Roanoke, Virginia. On June 8, 2010, Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), color (Brown), disability (Back), age
(46), and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964
Section 501 of the Rehabilitation Act of 1973 when: on September 9, 2009,
she was ordered off the clock; and on March 8, 2010, she became aware that
she was issued a Removal Notice which became effective February 25, 2010.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge. When Complainant did
not request a hearing within the time frame provided in 29 C.F.R. §
1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. §
1614.110(b).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
Complainant's ultimate removal. Specifically, Complainant's supervisor,
the Acting Supervisor of Customer Service (ASCS), stated that in
accordance with Article 13.4.F, the postmaster reviewed Complainant's
light duty assignment and updated the duties to be in accordance with her
restrictions and the available work at the Roanoke Installation offices.
She explained that Complainant was given this light duty job offer on
August 26, 2009 and had until August 28, 2009 to accept the offer. The
ASCS noted that Complainant refused to accept the light duty job offer.
She explained that Complainant had been on annual leave from August 31,
2009 to September 5, 2009. The ASCS stated that Complainant returned to
work on September 8, 2009, and Complainant was sent home on September
9, 2009 because there was no work available within her restrictions.
The ASCS contended that on September 10, 2009, Complainant was notified
that due to her refusal of the light duty job offer, no work could
be provided to her. The ASCS confirmed that Complainant grieved the
light duty job offer on August 27, 2009, and the Dispute Resolution Team
found that management had not violated Article 13 of the JCAM. The ASCS
indicated that Complainant was notified of this decision, but Complainant
never made any attempts to contact management in regard to another light
duty job offer. Complainant was placed off the clock from September 10,
2009 until her removal on February 25, 2010. Complainant did not receive
any pay for the time period she was placed off the clock.
Concerning the removal notice, the ASCS noted that Complainant was
informed during a meeting on September 10, 2009 with her union steward
present that due to her light duty refusal, the annex did not have any
work available. She averred that Complainant was sent correspondence on
September 10, 2009, September 25, 2009, and October 28, 2009. The ASCS
asserted that this correspondence advised Complainant of the contractual
provision and for Complainant to contact her immediately to document
Complainant's absence. She maintained that Complainant was instructed
to provide PS Form 3971’s and documentation for her absences. The ASCS
note that Complainant failed to follow these instructions. She explained
that the only communication or response was a letter from Complainant
on November 2, 2009, but the communication did not provide compliance
with any of the instructions given to her in prior correspondence.
The ASCS contended that she mailed another piece of correspondence in
response to Complainant's letter dated November 2, 2009 on November 6,
2009 of which she (Complainant) returned to sender. The ASCS stated
that she also had the returned leave slips Complainant had enclosed with
her November 2, 2009 letter, and these were also returned to sender.
She stated that on January 4, 2010, Complainant was sent a notice to
report for an investigative interview on January 8, 2010. The ASCS
averred that Complainant did not appear for the meeting, and she asserted
that she issued a Notice of Removal on January 25, 2010 for attendance,
specifically for being AWOL and Improper Conduct.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission’s own assessment of the record and its interpretation of
the law”).
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). She
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant
must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly challenges the credibility of Agency
witnesses in this matter. However, beyond her bare assertions, and even
assuming Complainant is a person with a disability, Complainant has not
produced evidence to show that the Agency’s explanations are a pretext
for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
January 5, 2012
__________________
Date
2
0120112180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112180