0120100498
05-31-2012
Juduette E. Thomas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Juduette E. Thomas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120100498
Hearing No. 410-2009-00303X
Agency No. 4H-300-0144-07
DECISION
On November 12, 2009, Complainant filed an appeal from the Agency's October 8, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodial Laborer at a Norcross, Georgia postal facility.
On May 14, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when (1) on March 2, 2007, it forced her to clean feces off the wall of a women's restroom when a male coworker refused a direct order to do so, (2) on March 8, 2007, it did not allow her to substitute for a coworker whose start time was 6:00 a.m. and who was on leave but sent a male coworker as her substitute instead, (3) in March 2007, a supervisor reprimanded her for wearing headphones while working but did not do the same to other employees, (4) on March 19, 2007, another supervisor reprimanded her for talking on her cell phone while in the employee break room but did not do the same to others. Subsequently, complainant added that the Agency discriminated against her when (5) on March 23, 2007, it instructed her not to talk to other employees, (6) on March 27, 2007, management told her to clock out after she allegedly made threatening statements to a supervisor, (7) on April 6, 2007, her sick leave request was not approved, (8) on May 4, 2007, her transfer request was denied, (9) on May 8, 2007, an Acting Supervisor harassed her and told Complainant to vacate the premises, and (10) on May 14, 2007, her supervisor embarrassed her in the presence of customers.
The Agency accepted Complainant's EEO complaint for investigation. During the Agency investigation, a Customer Service Supervisor (S1) stated that Complainant was instructed to clean what appeared to be feces off of a restroom wall. She noted that the male colleague who refused to perform the task was sent home and issued a letter of warning for failure to follow instructions. Regarding (2), S1 stated that the Agency gave Complainant an opportunity to bid on a vacant job with a 6:00 a.m. start time, but she declined the position because she did not like the related non-scheduled days. As to (3), S1 stated that she informed Complainant as well as others that they cannot have the volume on their headphones turned up so loud that they can't hear when moving around the facility. S1 noted that such is a safety hazard. With regard to (4), an Officer-in-Charge/Postmaster (S2) stated that Complainant was not on official break when he and two others witnessed her using her cell phone. He added that she became irate when he told her not to use her cell phone while working.
For (5), S1 stated that Complainant engaged Agency carriers in conversation, which hindered her productivity and theirs. An Acting Supervisor (S3) acknowledged that, on March 23, 2007, she instructed Complainant not to speak with the carriers. S3 stated that, regarding the incidents alleged in (6); she instructed Complainant to clock off, Complainant became belligerent, and she had Complainant escorted from the building. S2 corroborated S3's contention, stating that complainant failed to follow S3's instructions. Regarding (7), S2 stated that Complainant's sick leave request was approved once she provided the necessary documentation. For (8), S1 stated that Complainant was acting out of control so removal from the premises was the best course of action. For the remaining incidents (9) & (10), Agency management stated that it is not familiar with the alleged incidents. S3 stated summarily that Complainant does not like management giving her instructions.
At the conclusion of its 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. Four additional incidents were added to her complaint at the hearing stage. The additional incidents alleged discrimination when the Agency (11) on June 22, 2007, sent Complainant home and charged her leave without pay, (12) on June 29, 2007, denied her a change of schedule, (13) on July 6, 2007, issued Complainant a letter of warning, (14) allowed her former manager to tell her new manager not to grant Complainant overtime, and (15) issued Complainant a letter of removal. The AJ noted that, at the hearing stage, Complainant withdrew the basis of sex for every incident except number (1). She also noted that the letter of removal referenced in (15) was rescinded under a negotiated grievance process.
Following a hearing, on September 25, 2009, the AJ issued a decision finding no discrimination. Specifically, the AJ found that Complainant failed to show that she was subjected to adverse actions by the Agency or a nexus between the Agency's actions and her prior EEO activity. The AJ stated that Complainant grieved any discipline or instruction from Agency management and provoked many of the alleged incidents with her insubordinate attitude. Further, the AJ found that Complainant failed to show that the Agency's actions were based on her protected bases or rose to the level of a hostile work environment.
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 from Complainant without substantive comment.
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).
A fair reading of Complainant's claim is one of disparate treatment and hostile work environment harassment. Based on substantive evidence in the record, the Commission finds that the record is devoid of any persuasive evidence that discrimination was a factor in the Agency's actions. Complainant failed to show by a preponderance of the evidence that the Agency's reasons were not the real reasons, and that the Agency acted on the basis of discriminatory animus. We adopt the AJ's finding of no discrimination.
CONCLUSION
After careful review and consideration of the record herein, 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" 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
05/31/2012
__________________
Date
2
01-2010-0498
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100498