0120071898
06-22-2007
Patricia A. Rickard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Patricia A. Rickard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 0120071898
Hearing No. 510200700013X
Agency No. 4H320007206
DECISION
On March 7, 2007, complainant filed an appeal from the agency's February
1, 2007, 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.
ISSUE PRESENTED
The issue presented by this appeal is whether complainant has established
by a preponderance of the evidence that discrimination occurred.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Letter Carrier at the agency's Fort Walton Beach Florida Post Office.
Complainant states that after she notified the agency that it had breached
the parties' settlement agreement, her supervisor retaliated against her
by changing her work assignment. Prior to the time that complainant
reported a breach of the agreement, she states that she carried mail
pursuant to her normal assignment. On April 21, 2006, complainant filed
an EEO complaint alleging that the agency retaliated against her for
engaging in protected EEO activity under Title VII when:
1. her regular duties were changed;
2. she was given a 7 day suspension for violating rules regarding the
use of postal vehicles.
Complainant also alleged that the agency's actions in unilaterally
changing her work assignment amounted to harassment.
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 but subsequently withdrew her request.
Thereafter, the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged. More specifically, the agency
found that complainant failed to demonstrate that the actions alleged
were sufficiently severe or pervasive to alter the terms and conditions
of her employment. In addition, complainant's supervisor (S) asserted
that she changed complainant's work assignment in order to comply with
the terms of the parties' settlement agreement, not in an effort to
retaliate against her. Complainant's second level supervisor explained
that complainant had no regular route assignment and her duties were
determined based on the terms of the settlement agreement.
Addressing complainant's claim that she was disciplined with a 7
day suspension in retaliation for her EEO activity, S stated that
complainant was observed driving a postal vehicle with the door open.
The agency claimed that complainant was not delivering mail at the time
of the infraction and that her action constituted a safety hazard.
S2 stated that the 7 day suspension was appropriate progressive
discipline because complainant had already been given a letter of
warning for poor performance. Moreover, the particular infraction in
question was enough by itself to warrant the suspension even without a
record of prior discipline. In sum, the agency found that complainant
failed to show that these reasons were untrue and were a pretext to hide
discriminatory motives.
CONTENTIONS ON APPEAL
Neither complainant nor the agency submitted additional comments on
appeal.
ANALYSIS AND FINDINGS
The Commission reviews the agency's decision without a hearing using a de
novo standard of review. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). This means that
the Commission will examine the record without regard to the factual and
legal determinations of the previous decision maker. EEOC will review
the documents, statements, and testimony of record, including any timely
and relevant submissions of the parties based on the Commission's own
assessment of the record and its interpretation of the law. Id.
In this case complainant has claimed that she was treated disparately
because she engaged in protected EEO activity. Complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the outset,
complainant must generally establish a prima facie case by demonstrating
that 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). 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation for its actions 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).
With regard to complainant claims that the agency unfairly changed her
assignments as retaliation for her assertion that there was a breach
of their settlement agreement, the Commission finds that complainant
has established a prima facie case of retaliation because both S and S2
were aware of her EEO activity; she engaged in protected activity when
she and the agency discussed an allegation of breach of the parties'
EEO settlement agreement; and the agency's issuance of the seven
day suspension and the change in duties occurred close to that time.
However, the Commission finds that complainant failed to refute that
the agency gave her a specific route assignment because she had no
designated route and was assigned carrier duties and routes as needed.
Complainant also failed to persuade us that the agency's assignment
did not fall within her duties which the record indicates have been
designated as position 47901. Therefore, the Commission concludes that
complainant failed to demonstrate the agency's action deliberately gave
her assignments in an effort to retaliate against her.
Turning to complainant's claim that S's issuance of a 7 day suspension
was retaliatory, complainant does not dispute that she committed the
infraction at issue but she asserts that the infraction was minor.
Complainant did not dispute that she had been issued a letter of warning
for failing to obtain appropriate signatures on an express mail delivery
and that this preceded the issuance of a 7 day suspension. Thus, the
agency adequately justified its decision to issue disciplinary action
as well as the level of disciplinary action which complainant failed
to establish was a pretext for discriminatory animus. In addition, S
offered evidence that other letter carriers received similar disciplinary
actions for safety related rule infractions such that there was no showing
that complainant was treated less favorably than others not within her
protected class.
Finally, having found that the agency's actions were not based on
complainant having engaged in prior protected EEO activity, the Commission
must also find that she failed to establish her claim of discriminatory
harassment.1
CONCLUSION
The Commission concludes that complainant failed to meet her burden
of demonstrating the agency's explanations could not be believed and
that the agency more likely was motivated by a desire to retaliate
against her. For these reasons, we conclude that complainant's claim of
retaliation must fail. Accordingly, the agency's final decision finding
no discrimination is affirmed.
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
__6/22/07_________________
Date
1 To establish a claim of harassment based on reprisal, complainant
must show that: (1) she is a member of the statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors Compliance Manual No. 915.009, June 18, 1999.
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0120071898
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071898