0120122416
11-05-2012
Vana B. Haeup, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Vana B. Haeup,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122416
Agency No. 1E982000112
DECISION
On May 25, 2012, Complainant filed an appeal from the Agency's May 7, 2012, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Parcel Post Distribution Clerk at the Agency's Seattle Network Distribution Center in Federal Way, Washington.
On November 14, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), and reprisal for prior protected EEO when:
1. On September 6, 2011 she was issued a Letter of Warning which was later rescinded in the grievance process; and
2. On September 28, 2011, her request for a one year leave of absence was denied, forcing her to resign from her position.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The record indicates that on September 6, 2011, Complainant was issued a Letter of Warning for failing to properly secure a load of mail in a truck before it left Complainant's worksite for delivery. According to the Agency because Complainant failed to properly secure the mail with two straps, the load broke through the door panels of the delivery truck. After Complainant filed a grievance through the Agency's negotiated grievance process, the Agency agreed to rescind the Letter of Warning. In that regard, the Agency dismissed claim 1 as moot in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(5). Specifically, the Agency determined that the effects of the Letter of Warning had been eradicated when the Agency agreed through the grievance process to rescind the Letter from Complainant's personnel record. The Agency further noted in its decision that Complainant had not requested compensatory damages as a remedy for the Agency's alleged discriminatory conduct in issuing the Letter of Warning.
The record further indicates that Complainant requested a year leave of absence without pay so that she could accompany her husband out of state where he had recently been assigned by the military. The record further indicates that Complainant was afraid to remain at home alone in light of the fact that her ex-husband by whom she had previously been assaulted was being released from jail. In a letter from the Agency dated September 28, 2011, Complainant's request for extended leave without pay was denied. The Agency indicated that Complainant's job duties as part of a team of people required her presence. The Agency further determined that the operational needs of the Agency demanded that she be available to perform the bid job to which she had been assigned. According to the Agency, Complainant's supervisor offered to assist her in using the Agency's eReassign program in order to request relocation. Ultimately, Complainant resigned from her position with the Agency alleging that the Agency's denial of her request for a leave of absence forced her to resign. The thrust of Complainant's argument is that because of her race, sex and in reprisal for her prior EEO activity, her request for an extended leave of absence was denied. Complainant argues that because her request was denied, she was forced to resign rather than stay in her present location without her husband who had recently been transferred by the military. Complainant specifically contends that that if her leave request had been granted, she would not have had to resign.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim 1 - Letter of Warning
The Commission finds that at the time the Agency issued the Letter of Warning, Complainant was aggrieved. Therefore, the instant matter is properly analyzed as to whether Complainant's complaint has been rendered moot through the grievance process. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
Upon review, we find that the Agency properly dismissed claim 1 of Complainant's formal complaint. The record contains a copy of a "Step Two Grievance Settlement (form) signed and dated October 5, 2011, pertaining to the Letter of Warning. The form reflects that the grievance was resolved and that the Letter of Warning would be rescinded. On appeal, Complainant does not allege that the Agency failed to rescind the Letter as agreed. Moreover, there is no evidence of record that the Letter of Warning remains in Complainant's personnel file. Upon review we find that there is no reasonable expectation that the alleged violation will recur in light of the fact that Complainant is no longer employed with the Agency. We further find that these events have completely and irrevocably eradicated the effects of the alleged discrimination. In that regard we determine that the Agency's dismissal of claim 1 as moot was proper.
Claim 2 - Forced Resignation
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on national origin and sex by demonstrating that (1) she is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
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. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Irving v. Dubuque Packing, 689 F.2d 170 (10th Cir. 1982); Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980). The EEOC has adopted a three-pronged test for establishing a constructive discharge. A complainant must show that: (1) a reasonable person in appellant's position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) appellant's involuntary resignation resulted from the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990). Hence, in order to prevail on a claim of constructive discharge, appellant must first establish that the Agency engaged in prohibited discrimination. In regard to Complainant's claim of constructive discharge when she was allegedly forced to resign because her leave of absence request was denied, we find, that Complainant has not established that she was subjected to discrimination and that the Agency knowingly permitted conditions of discrimination so intolerable that a reasonable person subject to them would feel compelled to resign. In reaching this conclusion we find that Complainant has failed to demonstrate that she was treated less favorably than other similarly situated individuals when her request for a one year leave of absence was denied or that she was otherwise subjected to unlawful discrimination based on her race, sex or in reprisal for her prior EEO activity. We further find that Complainant failed to establish a prima facie case of discrimination on any alleged basis. Although Complainant was a member of the aforementioned protected classes, she failed to establish that she suffered an adverse action.
Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to establish pretext. We find no evidence that the Agency's actions were motivated by discriminatory animus.
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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
November 5, 2012
__________________
Date
2
0120122416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122416