0120100323
04-06-2010
Diana Mendez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Diana Mendez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100323
Hearing No. 480200800609X
Agency No. 1F927004108
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 29, 2009 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.
Complainant alleged that the agency discriminated against her on the
basis of reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when she was removed from her position
for failure to follow instructions, failure to follow a direct order,
failure to follow absence notification procedures, and failure to perform
work as directed.
Briefly, complainant had a bid assignment in the Priority and Express
Mail section at the Santa Ana Production and Distribution Center. Agency
management determined it was more efficient to reduce processing of
Priority mail at Santa Ana, and moved those operations to Anaheim which
had more effective processing machines. As a result, twelve clerks,
including complainant, lost their bid assignments. They were allowed to
bid on jobs in the Automation section. Complainant refused to bid because
she believed that her position was improperly abolished in accordance
with the collective bargaining agreement. Complainant reported to work
at her former schedule although it had changed. Her days off were changed
from Thursdays and Fridays off to Sundays and Mondays. Complainant failed
to report to work on numerous Thursdays and Fridays. Complainant was
ordered to report to Automation by her supervisor and refused to do so.
Thereafter she was issued the letter of removal.
Complainant filed the instant complaint. After receiving the report of
the investigation, complainant requested a hearing. The Administrative
Judge (AJ) determined that summary judgment was appropriate and issued a
decision without a hearing. The AJ found that complainant's arguments that
she was not obligated to work in Automation because the abolishment of her
position was "unlawful" under the collective bargaining agreement should
be addressed through the collective bargaining agreement procedures. The
AJ found that complainant did not show that the agency's reasons for
removing her were a pretext for discrimination. The AJ noted that the
record provided evidence of complainant's failure to report to work on
Thursdays and Fridays, resulting in charges of absence without leave.
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 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).
The Commission finds that substantial evidence of record supports the
AJ's conclusion that complainant failed to show that the agency's
reasons for its actions were a pretext for reprisal. Rather, as a
result of complainant's failure to bid for a new position as instructed
management assigned her to a position with different work hours and
days off. Her failure to report to work at the times instructed and
her refusal to report to Automation as ordered are documented in the
record. Complainant's opinion that the agency abolished her bid position
in violation of the collective bargaining agreement does not establish
pretext. As such, complainant has not proven, by a preponderance of the
evidence, that the agency's actions were motivated by retaliatory animus
for prior EEO activity.
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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 6, 2010
__________________
Date
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0120100323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100323