0120121661
08-09-2012
Angela L. Bajoie, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Angela L. Bajoie,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121661
Agency No. 4G-700-0171-11
DECISION
Complainant filed a timely appeal from the Agency's February 21, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency's finding of no discrimination is supported by the record.
BACKGROUND
Complainant worked as a City Carrier at the Agency's Baker, Louisiana facility in Baker, Louisiana.
On October 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 30, 2011, Complainant's supervisor did not acknowledge that Complainant suffered an injury;
2. On August 9, 2011, Complainant was issued a 14-Day No Time Off Suspension;
3. On September 8, 2011, Complainant was put off the clock and issued a Notice of Emergency Placement Off Duty Status; and
4. On September 29, 2011, the Agency issued Complainant a Notice of Removal, with an effective date of November 11, 2011.
The record reflects that Complainant had prior EEO activity, including Agency case number 4G-700-0116-11, which closed on June 17, 2011. Both the Postmaster (S1) and the Supervisor (S2) acknowledged that they were aware that Complainant engaged in prior EEO activity. The record further reflects Complainant was the representative for another employee, an African-American male employee who filed an EEO complaint after he received a notice of removal. The Postmaster (S1) had notice of Complainant's representation. On July 29, 2011, the Postmaster executed her affidavit regarding the Postmaster's removal action against the African-American male employee who identified Complainant as his representative. In addition and unrelated to her representation of the African-American employee, Complainant also wrote a letter that challenged S2 regarding what Complainant perceived as S2's race bias and mistreatment of another employee (Caucasian female).
Claim One
On July 30, 2011, Complainant became dizzy and weak, while walking her route. She slipped and almost fell. Complainant called in to report the incident to her Supervisor (S2) and the Postmaster (S1), but the Postmaster did not respond when told that Complainant was on the phone and not feeling well. S2 told Complainant that she was not hydrated enough. The next day, Complainant's knee was swollen and painful. When Complainant got to the office, Complainant's supervisor (S2) told Complainant that she could not take her to the doctor, because the supervisor was on her lunch break. The record shows that, later, S2 did take Complainant to the Emergency Care unit. Complainant stated that she believes that S2 initially refused to help her because Complainant had come to the aid of a Caucasian employee and her S2 felt that Complainant should not have written the letter a letter challenging her, because she and S2 were of the same race.
Claim Two
On August 9, 2011, S2 signed the suspension letter as the issuing official and the Postmaster (S1) signed as the concurring official. The record shows that Complainant had recurring attendance and leave infractions, but Complainant disputed the reasons for issuing the suspension noting that she had Family and Medical Leave Act (FMLA) leave and worked on July 9, 2011. As further background, after Complainant's April 11, 2011 EEO contact and assistance to another employee, S1 and S2 subjected her to a series of disciplinary actions. On June 25, 2011, the Agency issued Complainant a Letter of Warning for unsatisfactory performance - extended street time. On June 27, 2011, management issued Complainant a Seven-Day Suspension for Failure to Be Regular in Attendance.1 In addition, the record shows that Complainant did not report to work on July 5, 2011 and S2 marked Complainant Absent Without Leave (AWOL). On July 18, 2011, Complainant's Supervisor (S2) conducted an interview and Complainant refused to answer the questions about the attendance incidents.
Claim Three
The record shows that on September 7, 2011, Complainant picked up the stick that she usually carries to keep dogs away. Another employee ran up to the dock where Complainant was standing and "jumped in [Complainant's] face" and began screaming at Complainant. Complainant stated that she screamed, but, then, turned away and went inside to ask for the Postmaster's assistance. The Postmaster averred that Complainant came in from outside, carrying the stick that she carries while delivering mail. Complainant beat the stick against a mail cart, causing a loud noise. Complainant demanded that the Postmaster go outside and "get [the other carrier] out of her face." The Postmaster went outside and observed the rage from both of the combatants. The Postmaster told both Complainant and the other employee to turn in their keys and leave.
On September 8, 2011, The Agency issued Complainant the notice of emergency placement in off-duty status. The Postmaster was the deciding official and her stated reason was the threats of violence that Complainant and the other employee made toward each other. Complainant was in a non-pay status from September 7, 2011 until November 15, 2011. A subsequent grievance settlement rescinded the September 8, 2011 Notice of Emergency Placement Off-Duty Status.
Claim Four
The Agency issued a Notice of Removal which was based on "Unacceptable Conduct" after Complainant engaged in a verbal and physical altercation with another Rural Carrier and after Complainant told the other carrier that Complainant intended to "beat her ass."
The record reflects that the Notice of Removal was reduced to a 30-days paper suspension, with time served; and Complainant was returned to work, as part of the grievance settlement.
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 Agency found that Complainant failed to prove claim one (management did not acknowledge her injury); because she did not show that another employee (who had not engaged in prior EEO activity) was treated more favorably than she was, under similar circumstances. Although the Agency found that Complainant proved the elements of her prima facie case for claims 2, 3 and 4, the Agency reasoned that Complainant failed to prove that the Agency subjected her to discrimination because "Management has established their non-discriminatory reason for their actions and the complainant cannot prove that the reasons were pretextual." The Agency found that Complainant offered vague allegations of improper conduct and discriminatory intent, unsupported by documentary evidence or witness testimony. The Agency concluded that Complainant failed to prove the alleged retaliation.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the decision distorts several facts2 and she asserts that the other carrier was the aggressor in the altercation that resulted in the issuance of the Notice of Removal. Complainant also states that management asked employees to lie. Complainant maintains that management continues to harass and retaliate against her "because of the Agency's mismanagement."
ANALYSIS
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").
To prevail in a disparate treatment claim, Complainant must 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).
Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. See Watkins v. United States Postal Service, EEOC Appeal No. 0120092749 (June 29, 2012). Specifically, in a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or 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).
The record shows that her most recent activity closed on June 17, 2011, which was in close proximity to the July 30, 2011 refusal of assistance by her Supervisor and the Postmaster.3 The record reflects that, after her April 11, 2011 EEO contact and assistance to another employee, S1 and S2 subjected her to a series of disciplinary actions. For purposes of our analysis, we find that Complainant established the elements of her prima facie retaliation claims. Generally, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983).
We find that the Agency articulated legitimate, nondiscriminatory reasons for issuing the actions at issue in this case. Further, we find that the Agency put forth sufficient evidence to support the legitimacy of the actions. The record includes affidavits from management showing that the supervisor believed that Complainant was only dehydrated, but the supervisor did respond to Complainant's request for assistance. With regard to claim two, the Agency stated that Complainant's suspension was due to her poor attendance record. For claims three and four, the Agency stated that Complainant was put off the clock and issued the Notice of Removal, due to the threats that Complainant concedes she made against another employee. The record shows that the Agency subjected the other employee to the same emergency placement and Notice of Removal.
To ultimately prevail, Complainant must prove, by preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Complainant did not meet this burden of proof. Other than Complainant's bare assertions that others were treated more favorably, the record does not include evidentiary support.
Finally, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vincent, 477 U.S. 57, 67 (1986), that harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. In this case, the actions were frequent and sufficient to interfere with an employee's work performance. However, the Agency put forth legitimate, non-discriminatory reasons for its actions, which are supported by the evidence.
For all of these reasons, we find that the record supports the Agency's determination of no reprisal or discrimination.
CONCLUSION
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 Decision.
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 tends 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
August 9, 2012
__________________
Date
1 The subject Notice of Removal for Complainant references three prior Letters of Warning which the Agency states were issued to Complainant on February 4, 2010, April 15, 2011 and June 25, 2011 and a Seven-Day Suspension dated June 27, 2011 and a 14-Day Suspension on August 9, 2011.
2 Complainant disputes that another employee "had to separate them" during the altercation; that she made a U turn in the parking lot or that she told anyone that she was trying to give the other employee pills.
3 We note that the record shows that the day before the incident at issue, the Postmaster submitted her affidavit in the other EEO matter, for which Complainant was serving as a representative.
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0120121661
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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