Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20140120122940 (E.E.O.C. Sep. 19, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120122940 Hearing No. 510-2011-00208X Agency No. 4H-335-0257-10 DECISION On July 17, 2012, Complainant filed an appeal from the Agency’s June 14, 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., 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Mid Cape Carrier Annex in Cape Coral, Florida. On September 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability, age (51), and in reprisal for prior protected EEO activity when: 1. on or about July 19, 2010, she was not provided with a reasonable accommodation; 2. on or about July 21, 2010, she was not provided training; 3. on July 22, 2010, she was given an investigative interview, and subsequently on August 4, 2010, she was issued a Letter of Warning (LOW); 4. on July 29, 2010, she was given a discussion about her footwear; and 0120122940 2 5. on August 10, 2010, she was given an investigative interview, and subsequently on August 16, 2010, she was issued a Notice of 7-Day No Time-Off Suspension.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 Administrative Judge (AJ). Complainant timely requested a hearing. On November 29, 2011, the Agency filed a motion for summary judgment, which Complainant opposed. On May 24, 2012, the AJ granted the Agency’s motion. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed, but Complainant did not submit any arguments in support thereof. UNDISPUTED FACTS Complainant began her employment in 2005. As a Rural Carrier Associate, Complainant works part-time with no minimum guarantee of work. On May 9, 2006, Complainant was diagnosed with a neck sprain, headaches and lumbosacral radiculitis. On April 21, 2006, Complainant initiated contact with an EEO counselor (EEO-1). This EEO case was closed on June 6, 2006. On December 2, 2009, Complainant initiated contact with an EEO counselor (EEO-2). The alleged discriminatory officials identified in EEO-2 are different than the alleged discriminatory officials named in the instant complaint. On or about July 31, 2010, Complainant asked her supervisor (S1) for a dolly to use while delivering large packages to customers. The only dollies at the Mid Cape Carrier Annex were the personal property of another employee and not the Agency. S1 offered Complainant a u- cart, orange hamper, or float, instead of a dolly. Complainant did not indicate that her request for a dolly was related to any medical condition. On an unspecified day, Complainant asked another supervisor (S2) for the use of a postal vehicle to help her deliver a large U-haul box. The route assigned to Complainant (Route 215) does not have a postal vehicle assigned to it. Agency policy requires the carrier assigned to such route to possess a personal vehicle large enough to deliver large packages. Complainant had a Blazer or Bronco but did not think that she could not fit the U-haul box along with the rest of the mail she needed to deliver that day. S2 was able to fit the U-haul box in Complainant’s car, but nevertheless, allowed her to deliver the U-haul box first then load the car with the rest of the day’s mail if she thought that would be safer. Complainant did not share with S2 any concerns about her safety. 1 The Agency dismissed additional claims on the basis that such claims failed to state a claim upon which relief may be granted. We decline to review the propriety of the dismissals since Complainant does not challenge them on appeal. 0120122940 3 On an unspecified date, Complainant requested a shadow day with the regular rural carrier on Route 31. The purpose of the shadow day is to allow newly hired employees the opportunity to experience a full day with a rural carrier to help them determine if the job is suitable. Complainant’s request was denied because she was not a new hire. However, during the week of July 10, 2010, Complainant attended rural carrier refresher training since it had been a few years since she had actually performed rural carrier duties.2 On July 22, 2010, S1 conducted an investigative interview of Complainant because the previous day she had returned to the office with undelivered first class mail for approximately 20 addresses, and she did not inform her supervisor that this mail was not delivered. In addition, five days earlier, on July 17, 2010, Complainant had been instructed to deliver all of the first class mail on her route and to call the office by 3:00 p.m. if she was having any difficulty with delivering all of the mail by 5:00 p.m. On August 3, 2010, S1 issued Complainant a LOW for failing to follow instructions. On July 29, 2010, a member of the Safety Committee (SC) observed Complainant wearing sandals which is a violation of the dress code. SC explained the dress code policy to Complainant and handed her a copy of the Rural Carrier dress code. On August 2, 2010, at about 6:20 p.m., Complainant returned to the office and advised S2 that she had not scanned or delivered four certified letters. When S2 asked why not, Complainant responded, “I must have missed them.” On August 4, 2010, a customer returned 19 pieces of mail that were wrongly delivered to his address by Complainant on August 3, 2010. This mail included pieces addressed to seven different addresses. On August 10, 2010, S2 conducted an investigative interview of Complainant regarding her performance failures on August 2 and 3, 2010. S2 determined that despite prior discussions and a LOW, Complainant again failed to properly perform her mail delivery duties and deserved progressive discipline in the form of a Notice of Seven-Day No time Off Suspension. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp. , 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. We agree with the AJ’s conclusion that no material facts are disputed herein and that Complainant failed to present sufficient evidence in support of her claims. Specifically, we find insufficient evidence to support the conclusion that Complainant was subjected to a severe 2 Complainant’s medical restrictions stemming from the 2006 diagnosis had recently been lifted. 0120122940 4 and/or pervasive hostile work environment or that such conduct by the Agency was motivated by discriminatory animus. We also find that the record is devoid of evidence of discriminatory animus toward any of Complainant’s protected classifications. In addition, we find the record devoid of evidence to support the finding that the Agency’s articulated legitimate, non-discriminatory reasons for the employment actions herein were a pretext for discrimination. For example, the undisputed record shows that Complainant was given a discussion about her footwear because wearing sandals violated the dress code policy and was a safety concern. In addition, the undisputed record shows that Complainant received progressive discipline because she failed to perform her delivery duties satisfactorily. The discipline was supported by sufficient, objective evidence of Complainant’s failure to deliver all the mail on her route on July 21, 2010 and August 2, 2010, as well as her failure to deliver a good portion of the mail to the correct addresses on August 3, 2010. Although Complainant describes various requests for accommodations, the undisputed record also supports the conclusion that she was provided effective accommodations. Specifically, the record shows that S1 provided Complainant with an effective accommodation to the request for a dolly (i.e., the use of a u-cart, orange hamper or float). Similarly S2 provided Complainant with an effective accommodation to the request for a postal vehicle by loading the large U-haul box into Complainant’s car and permitting Complainant to deliver the box out of sequence. Lastly, instead of giving Complainant a shadow day, she received refresher training during the week of July 10, 2010. CONCLUSION Accordingly, based on a thorough review of the record, we AFFIRM the Agency final order which adopts 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 0120122940 5 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 Date September 19, 2014 Office of Federal Operations Copy with citationCopy as parenthetical citation