01A42089
06-29-2004
Helen Vanden-Mains, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Helen Vanden-Mains v. United States Postal Service
01A42089
June 29, 2004
.
Helen Vanden-Mains,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A42089
Agency No. 4G-760-0238-02
Hearing No. 310-2002-05228X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Grade Level 5 Rural Carrier
Associate, at the agency's Euless, Texas facility, filed a formal EEO
complaint on September 3, 2002, alleging that the agency had discriminated
against her on the bases of race (Caucasian), national origin (Hispanic),
sex (female), and reprisal for prior EEO activity<2> when:
(1) On April 26, 2002, complainant's request for a cash advance was
denied;
On May 22, 2002, complainant was singled out, ordered to sort mail,
and was not paid for sorting mail;
On May 16, 2002, complainant was issued a Letter of Warning for being
involved in an automobile accident on May 1, 2002;
On May 10, 2002, complainant was given a driver's observation and was
later issued a 7-Day No Time Off Suspension dated May 22, 2002;
On May 30, 2002, complainant was issued a 14-Day Suspension;
Complainant received a letter of Notice of Emergency Placement in
an Off-Duty Status without pay effective immediately dated June 24,
2002; and,
Complainant received letters placing her on immediate Administrative
Leave and was issued a Notice of Removal dated July 5, 2002, effective
August 8, 2002.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination based on race, sex, national origin, or reprisal
for prior EEO activity as to Claim 3, regarding the Letter of Warning.
The AJ found that complainant's asserted comparison employee, a Caucasian
male Hispanic who had also been in a car accident, was not similarly
situated to complainant because his accident was not his fault. The two
incidents therefore could not be used for comparison in assessing whether
the Letter of Warning constituted different treatment. Nevertheless,
the agency offers a legitimate, nondiscriminatory reason for issuing the
Letter of Warning, namely that the accident involved a serious safety
violation that warranted such action.
Moreover, the AJ concluded that complainant failed to establish a prima
facie case on the basis of reprisal for prior EEO activity as to any the
asserted issues. The AJ found that no evidence exists to prove that any
member of management knew of complainant's prior EEO activity when they
took the actions in dispute.
The AJ further concluded that, regardless of whether a prima facie case
of discrimination was established, the agency articulated legitimate,
nondiscriminatory reasons for its actions. As to Claim 1, the fellow
employee who did receive the cash advance received it a month before
complainant applied. In the interim, the agency asserts, and the record
supports, that its policy changed as to granting cash advances due to an
increase in requests. Furthermore, as to the sorting of mail in Claim
2, the agency asserts that complainant was paid for separating it, and
that the task was required of all mail carriers. Because the sorting
of mail picked up on route was part of her job description, complainant
was required to do so and was paid for such activity like others in
her position. The agency further asserts that Claim 4's suspension
following multiple driver's observations was justified because complainant
was observed speeding and driving with the door open, incidents that
implicated important safety issues. The agency also contends that the
increased frequency of complainant's driver's observations reflected
agency policy, in that closer scrutiny of at-fault drivers was standard.
Likewise, as to Claim 5, complainant was issued the 14-Day Suspension for
interfering with the mail delivery to a church. Complainant withheld
mail because she claimed that the mailbox was unsafe, even after
management investigated and found the box to be in a safe location.
Furthermore, by going to the church and moving the mailbox herself,
the agency claims that complainant exhibited inappropriate behavior.
The AJ concluded that this was a legitimate reason for complainant's
Notice of Emergency Placement in an Off-Duty Status in Claim 6, and
complainant's subsequent dismissal in Claim 7.
The AJ further found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
found that complainant fails to cast even �the slightest doubt� as to
the credibility of the agency's articulate nondiscriminatory reasons.
She merely argues that she should not have been punished for her
automobile accident because it was not serious, and that by withholding
mail, no damage was done because most of the church's important mail came
to a post office box, not the mailbox in question. The AJ concluded
that complainant failed to meet her burden to show that the agency's
legitimate, nondiscriminatory reasons were a pretext for discrimination
based on race, sex, national origin, or reprisal for prior EEO activity.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race, sex, or national origin. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
June 29, 2004
__________________
Date
1Pursuant to 29 C.F.R. � 1614.606, the
agency consolidated Agency Case Nos. 4-G-760-0238-02, 4-G-760-0239-02,
and 4-G-760-0250-02 into the instant agency number, 4-G- 760-0238-02,
for joint processing.
2The record indicates, and the agency does not dispute, that complainant
participated in prior protected activity, but it is unclear under which
statute(s) such activity occurred.