0120071740
07-05-2007
Wilma R. Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilma R. Figueroa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071740
Hearing No. 451-2006-00097X
Agency No. 4G780004306
DECISION
On February 23, 2007, complainant filed an appeal from the agency's
January 15, 2007, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 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 order.
At the time of events giving rise to this complaint, complainant
worked as a letter carrier at the Highlander station in Waco, Texas.
Before injuring her shoulder, she worked as an acting supervisor,
or 204B supervisor, rotating to various facilities in the Waco area.
On January 13, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of national origin1 (Hispanic of
Puerto Rican Descent), sex (female), disability (shoulder injury), age
(D.O.B. 03/18/56), and reprisal for prior protected EEO activity when:
1. On January 13, 2006, she was issued a seven (7) day suspension
for failure to follow instructions;
2. On October 22, 2005, she was issued a Letter of Warning (LOW);
3. On October 18, 2005, she was threatened with discipline;
4. On September 28, 2005, management joked about terminating her;
5. On August 27, 2005, she was informed that she needed remedial
training;
6. On August 26, 2005, she was denied union representation; and
7. On August 25, 2005, she was harassed for not taking short cuts.
At the conclusion of the investigation, complainant was provided 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, and the AJ held a hearing on November 13, 2006 and
issued a decision on April 9, 2006.
The AJ found that complainant failed to prove by a preponderance of the
evidence that the agency discriminated against her as alleged. At the
outset, the AJ found that complainant failed to establish that she is
an individual with a disability as defined by the Rehabilitation Act
because she was not substantially limited in a major life activity.2 She
further determined that complainant did not have a record of a disability,
nor was she regarded as having a disability. With regard to the claim
of reprisal, the AJ found that complainant had engaged in prior EEO
activity. However, she determined that the agency articulated legitimate
nondiscriminatory reasons for the tangible employment actions taken.
Specifically, management issued a LOW because complainant temporarily
lost the arrow key, which serves as the "master" key to the city's
mailboxes; and management issued a suspension when complainant failed
to call the ERMS system to report an absence. The AJ determined that
complainant failed to show that these reasons were untrue. With respect
to the non-tangible employment actions making up complainant's claim
of harassment, the AJ found that none of the alleged incidents were
objectively offensive with the exception of management's joke that
it would terminate her. Moreover, the AJ allowed other incidents as
background, but nonetheless determined that complainant's difficulty with
management stemmed from a dispute regarding the length of her route, as
well as her belief that women were disadvantaged on long routes which
required continued carrying of weight, and not a reason prohibited by
Title VII, the ADEA, or the Rehabilitation Act. In this regard, the
AJ noted that both men and women were disciplined when they failed to
deliver a route in the scheduled time.
The AJ further found the responsible management official (RMO) credible.
In so doing, she accepted his denials regarding comments attributed to
him, such as women cannot deliver mail like men. She further noted that
RMO assigned a woman to be acting supervisor.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant appealed the final order to the Commission.
On appeal, complainant contends that: (1) she was reassigned to the
Highlander station after she opposed alleged discriminatory practices;
(2) upon arriving at the aforesaid station, management informed her
that they "knew" of her; (3) management blamed complainant for other
women's complaints, and due to her complaints to a member of Congress,
management began disciplining her; and (4) the AJ failed to properly
weigh evidence of sex, age, and disability bias.
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, � VI.B. (November 9, 1999).
The Commission finds that the AJ's decision summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's decision finding no discrimination
on the bases of national origin, sex, age, disability,3 and /or reprisal.
Although complainant contends that the agency acted in reprisal due to her
opposition of alleged discriminatory practices, substantial evidence in
the record supports the AJ's finding that complainant failed to show that
management acted on the basis of discriminatory animus. Specifically,
the record reveals that management issued the LOW and the suspension
for legitimate nondiscriminatory reasons, and complainant failed to show
that those reasons were pretextual. Complainant also maintains that the
AJ failed to properly weigh evidence of sex, age, and disability bias.
However, we find that, inasmuch as the AJ found the RMO's testimony
credible, there is insufficient evidence in the record to establish
that management acted with discriminatory animus when it disciplined
complainant or allegedly harassed her. In sum, the Commission finds
that the AJ's finding of no discrimination is supported by substantial
evidence in the record. Based on a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, 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
___7/05/07_______________
Date
1 Although complainant alleged discrimination on the basis of race,
identified as Hispanic, the Commission notes that it considers the term
"Hispanic" to denote a national origin group rather than a racial group.
Accordingly, we will analyze complainant's claim as one of national
origin discrimination.
2 Complainant had a lifting restriction of 50 pounds.
3 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120071740
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071740