0120110796
11-04-2011
Denise Estrada, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Denise Estrada,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110796
Hearing No. 480-2009-00296X
Agency No. 1F914000209
DECISION
Complainant filed an appeal from the Agency’s October 20, 2010, 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s P&DC facility in Santa
Clara, California.
On October 20, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of sex (female),
disability (bilateral carpal tunnel), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964, when she
was given investigative interviews on October 10, 2008 and November 4,
2008, and when she was issued a notice of fourteen-day suspension on
November 14, 2008.
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, and the AJ held a hearing on July 21,
2010 and August 3, 2010, and issued a decision on September 30, 2010.
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. The instant appeal followed without comment.
Briefly, Complainant was assigned to the Access Control Room (ACR)
pursuant to a limited duty job offer. Her duties included, among other
things, answering the telephone.
According to the evidence, on May 12, 2008, someone identifying himself
as “RB” called the Agency and complained that Complainant was
harassing him with telephone calls. An investigation was undertaken by
the Agency’s Office of Inspector General (OIG). Telephone records
were obtained for the telephone in Complainant’s work area, which
showed that 222 calls were made to RB’s number between February 7,
2008 and May 13, 2008, during the time Complainant was on duty.
An interview was held with Complainant by OIG concerning the calls on
October 10, 2008. Complainant asserted that RB was a family friend and
denied making threatening calls to him or harassing him. Complainant
stated that she did not know she could not use the telephone for
personal use On October 13, 2008, RB sent the Agency a letter stating
it was his “sworn statement” that Complainant never called him in a
threatening or harassing manner. Further, RB denied calling the Agency
with any allegations against Complainant and denied speaking to an OIG
Investigator. At a second investigative interview with OIG on November
10, 2008, Complainant was asked to explain her calls to RB and whether
they were calls for official business, but did not do so, referring to
statements she made in the first interview.
Based on the investigation, the Agency issued Complainant the fourteen-day
suspension. The suspension indicated that during the hours Complainant was
working in ACR between February 7 - May 13, 2008, Complainant engaged in
at least 354 personal calls totaling 29 hours and 42 minutes, and that
1, 059 calls to non-Agency numbers were made in the same time period.
The notice of suspension did not charge Complainant with having made
threatening or harassing calls to RB.
In his decision, the AJ noted that RB testified at the hearing that he did
not contact the Agency and did not complain about calls from Complainant.
The AJ considered the testimony and determined that the testimony from
the OIG Inspector was more credible. The OIG Inspector explained that
after being informed about RB’s complaint, she called the number RB
left and talked to him. However, after the initial conversation, RB did
not return calls to set up an in-person interview with the OIG Inspector.
The AJ found that the OIG Inspector testified in a forthright and direct
manner and was very credible while RB was “tentative and equivocal
and, thus, was less credible.” Further, the AJ noted that evidence did
not establish that anyone fabricated the message from RB as a ruse to
justify investigating Complainant’s phone usage. The AJ stated that
Complainant did not deny making and receiving personal calls in ACR.
It was noted that the fourteen-day suspension was later reduced to a
three-day suspension.
The AJ concluded that Complainant failed to establish a prima facie
case of sex or disability discrimination, but established a prima facie
case of retaliation. However, the AJ noted that even if Complainant
established a prima facie case on any basis, she did not prove that the
Agency’s reasons for its actions were a pretext for discrimination
and/or retaliation.
ANALYSIS AND FINDINGS
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 110, Chapter 9, at § VI.B. (November
9, 1999).
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). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. 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 U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Commission finds that even assuming Complainant established a
prima facie case on any alleged basis, she has not shown that the
Agency’s reasons for its actions were a pretext for discrimination or
retaliation. The AJ found the testimony of the OIG Inspector credible, and
it was not unreasonable for the Agency to then investigate a complaint of
harassing telephone calls. Complainant did not deny using the telephone
for personal telephone calls or the 222 calls that she made to RB. As
such, the Commission finds that the AJ properly found that Complainant
was not discriminated against or retaliated against by the Agency.
Accordingly, the Agency’s final order adopting the AJ’s decision
is AFFIRMED
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
November 4, 2011
__________________
Date
2
0120110796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110796