0120062884
09-07-2007
Gloria A. Pacheco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria A. Pacheco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200628841
Hearing No. 350-2003-08143X
Agency No. 1E-871-0024-02
DECISION
On March 31, 2006, complainant filed an appeal from the agency's March 22,
2006 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Clerk at the agency's Processing and Distribution Center facility
in Albuquerque, New Mexico. On April 26, 2002, complainant filed an EEO
complaint alleging that she was discriminated against on the bases2 of
national origin (Hispanic), sex (female), and in retaliation for engaging
in previous EEO activity when:
1. In November 1999, complainant's supervisor shorted complainant's
check more than once causing an adjustment to be made;
2. On July 20, August 31; September 24 and December 7, 2001,
complainant was denied the opportunity to work overtime;
3. On July 1, 2001, complainant was denied a temporary light duty
assignment;
4. On October 12, 2001, complainant's supervisor harassed her when
complainant went to get gloves from the maintenance office;
5. On December 8, 2001, complainant was harassed by her supervisor
when her supervisor stared at her at a night club and later when
complainant reported to work, she mandated complainant to work on New
Years Day, followed her to her locker and the restroom;
6. On February 8, 2002, complainant's supervisor questioned her
about an incident in which an employee alleged that complainant pushed
a General Purpose Container (GPC) in her way;
7. On February 20, 2002, complainant's scheduled work hours were
changed while co-workers were allowed to change their schedules.
By letter dated January 13, 2003, the agency dismissed claims (1)
through (6) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. Claim (7) was investigated. At the conclusion of
the investigation, complainant requested a hearing. By order dated July
19, 2004, the Administrative Judge affirmed the agency's dismissal of
claims (1) through (6) and dismissed complainant's complaint because
she, "[F]ailed to present any evidence to demonstrate that the issue
was not settled or should not be considered moot." The AJ noted that
after a grievance was filed, complainant and two co-workers were paid
out-of-schedule pay for the time they worked outside of their normal
schedules. On August 2, 2004, the agency issued a final action that
implemented the AJ's decision. Complainant appealed the agency's final
action to the Commission.
In Pacheco v. United States Postal Service, Appeal No. 01A46042 (March 3,
2006), we found that complainant's complaint was not moot. We reversed
the agency's final action and remanded claim (7) of the complaint to the
agency to issue a final order on the merits of complainant's complaint
within 60 days. On March 22, 2006, the agency issued its final decision,
finding no discrimination occurred. This appeal followed.
In its decision, the agency found that complainant failed to identify
any similarly situated employees, not in complainant's protected classes
who were treated differently than complainant was treated. Moreover,
the agency found that operational considerations motivated the agency's
decision to change the starting time for complainant and other employees
by 45 minutes.
On appeal, complainant supplies abundant evidence that her fianc� has
long been a participant in the EEO process and has opposed actions he
considers to be discriminatory. Complainant describes numerous historical
incidents where she believes she has been singled out for harassment by
supervisory officials.
ANALYSIS AND FINDINGS
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 he or
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find the agency properly concluded that no
discrimination occurred as alleged. We note that again complainant
does not challenge the earlier dismissal of claims (1) through (6)
and we note that many of the historical events to which complainant
refers on appeal have been the subject of prior EEO complaints.3 We
note that the agency does not dispute that complainant has previously
engaged in the EEO process, nor does the agency dispute that complainant
has been associated with other employees engaged in the EEO process and
opposing agency actions they believe to be discriminatory. Nevertheless,
we find that the agency has articulated legitimate, non-discriminatory
reasons for changing complainant's schedule to a different starting time.
Complainant's supervisor states that she changed complainant's starting
time, and that of two other clerks to 45 minutes later in an effort
to help eliminate overtime. While complainant identified a number of
employees also in Clerk positions who did not have a schedule change,
the agency noted that they were on different sorting schemes and had
different training. We concur with the agency that complainant did not
identify any similarly situated employees, not in her protected classes,
who received preferential treatment, nor do we find evidence to show
that the change in schedule was motivated by reprisal for complainant's
own prior EEO activity or for being associated with other employees
opposing discrimination.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 7, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 In her decision, the Administrative Judge changed the bases of
complainant's complaint from race (Hispanic), sex (female) and religion
(unspecified) to national origin (Hispanic), sex (female) and reprisal.
We note that in her prior appeal, (Pacheco v. United States Postal
Service, Appeal No. 01A46042 (March 3, 2006)), complainant did not object
to the bases identified by the AJ.
3 Complainant refers to her allegations raised in agency case number
1E-871-0059-01.
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0120062884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062884