Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 15, 20150120132924 (E.E.O.C. Jan. 15, 2015) 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 (Western Area), Agency. Appeal No. 0120132924 Hearing No. 443-2011-00090X Agency Nos. 4E-500-0002-11; 4E-500-0071-11 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the July 17, 2013 final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaints 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’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency’s Post Office in Ankeny, Iowa. On September 24, 2010, Complainant left for her route with an Express Mail piece which did not require a signature and which needed to be delivered by the end of the day. Complainant failed to deliver the mail and returned to the office with it. Agency management had previously held a service talk discussing how to handle such deliveries, and Complainant attended the talk. Complainant’s supervisor (S1) held an investigative interview with Complainant regarding the incident and subsequently, on October 6, 2010, issued her a 14-Day Suspension for Unacceptable Performance/Failure to Follow Instructions. On November 3, 2010, the Officer-in-Charge (OIC) observed Complainant’s postal vehicle running without Complainant in it, in violation of Agency safety policies. That same day, while out on her route, Complainant informed management that she was not going to make 0120132924 2 dispatch, and management sent a “runner” to meet up with her to collect her outgoing mail to be taken for dispatch. When Complainant returned to the office, she brought back a tub of collection mail that she had not given the runner, which resulted in overtime and late arriving mail at the plant. S1 held an investigative interview with Complainant and on December 1, 2010, S1 issued Complainant a Notice of Removal for Unsafe Act and Unacceptable Performance. The Union later filed a grievance regarding the Notice of Removal. As a result of a grievance settlement, the removal was reduced to a 14-Day Suspension, and Complainant was to be returned to work with back pay. On July 1, 2011, OIC sent Complainant a letter instructing her to return to work on July 2, 2011. Complainant refused to return unless her own terms were accepted. The Agency did not accept her demands and issued a second Notice of Removal on July 21, 2011, for Failure to Follow Instructions and Absent without Leave (AWOL). On November 16, 2010, Complainant filed an EEO complaint (Agency No. 4E-500-0002-11), later amended to include claim 2, alleging that the Agency discriminated against her on the bases of sex (female), age (44), and in reprisal for prior protected EEO activity when: 1. On October 6, 2010, she was issued a 14-Day Suspension, and 2. She received a Notice of Removal dated December 1, 2010. On August 8, 2011, Complainant contacted an EEO counselor (Agency No. 4E-500-0071-11) to allege that the Agency discriminated against her on the bases of sex, age, and in reprisal for prior protected EEO activity when: 3. On or around July 21, 2011, she was issued a second Notice of Removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On February 13, 2012, the AJ assigned to the case ordered an expedited investigation (SROI) into claim (3) and consolidated the complaints. On June 14, 2013, Complainant withdrew her hearing request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and reprisal and found that management articulated legitimate, nondiscriminatory reasons for its actions. In particular, as to claim (1), S1 affirmed that Complainant signed for an Express Mail piece which had a signature waiver, as well as a delivery by the end of the day endorsement, before she left to deliver her route. Instead of delivering the mail piece, Complainant returned with the mail and refused to deliver it even after the closing Distribution Clerk told her it had to be delivered. During the investigative interview, Complainant claimed that she was unaware about the process for delivering Express 0120132924 3 Mail with a signature waiver; however, the program on the scanner had been updated and management had given ongoing service talks on the delivery of Express Mail. Complainant had prior discipline in her record. Therefore, S1 issued Complainant a 14-Day Suspension for Unacceptable Performance – Failure to Follow Instructions. With respect to claim (2), S1 contended that he conducted an investigation after OIC reported Complainant’s performance problems to him. OIC confirmed that she witnessed Complainant away from her vehicle with the engine running, which violated Agency safety policies. In addition, management was aware that Complainant had returned to the Post Office that same day without finishing delivery of her assigned route which caused unscheduled overtime and extra mileage. As a result, S1 issued Complainant the Notice of Removal for continued dereliction in performing the tasks required to carry out assignments as a Rural Carrier Associate. Finally, regarding claim (3), OIC attested that Complainant was awarded her job back with back pay from the previous removal and was given a return to duty date, but refused to return. OIC noted that Complainant said she would not come back unless her demands were met, which the Agency denied. Since Complainant refused to come back to work, the Agency issued the second Notice of Removal for AWOL and Failure to Follow Instructions. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment 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 Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions as discussed above. More specifically, regarding claim (1), S1 stated 0120132924 4 that Complainant failed to deliver an Express Mail piece that had a signature waiver and an end-of-the-day endorsement. ROI, at 103. When Complainant returned to the office, the closing Distribution Clerk informed her that the Express Mail piece was guaranteed delivery by the end of the day and needed to be delivered. Id. Complainant still refused to deliver the mail piece and left for the day. Id. S1 conducted an investigative interview with Complainant and she claimed she did not know how to handle the delivery despite service talks on the subject and a scanner program update. Id. As a result, S1 issued Complainant a 14-Day Suspension for Unacceptable Performance. Id . at 134. With respect to claim (2), OIC averred that she witnessed Complainant violating Agency safety policies by leaving her postal vehicle running and unattended. ROI, at 176. In addition, that same day, Complainant called the office to inform management that she was going to miss dispatch. Id. at 107. A runner met Complainant to retrieve all of her collection mail to take to the Distribution Center. Id. When Complainant returned, she revealed she had not given all of her mail to the runner which resulted in overtime and late arrival of mail at the plant. Id. at 107, 176. As a result, S1 issued Complainant a Notice of Removal for Unsafe Act and Unacceptable Performance. Id . at 114. Finally, with regard to claim (3), OIC affirmed that Complainant was awarded her job back with back pay and given a return-to-duty date. SROI, at 83. Complainant refused to return and informed management that she would not return unless her demands were met. Id. Management denied her demands, and Complainant refused to return to work. Id . Consequently, management issued the second Notice of Removal for AWOL and Failure to Follow Instructions. SROI, Ex. 6. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine , 450 U.S. at 256. As Complainant chose to withdraw her hearing request, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Beyond Complainant's bare assertions, the Commission finds that there is no persuasive evidence in the record that Complainant's protected classes played a role in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the bases of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. 0120132924 5 CONCLUSION 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” 0120132924 6 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 Date January 15, 2015 Copy with citationCopy as parenthetical citation