0120131139
06-13-2013
Anissa R. Mitchell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Anissa R. Mitchell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120131139
Hearing No. 410-2010-00365X
Agency No. 4H-300-004510
DECISION
Complainant filed an appeal from the Agency's December 14, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Newnan Post Office facility in Newnan, Georgia.
On March 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when, on November 25, 2009, the Agency adjusted her route assignment.
The record reveals that, on September 24, 2009, the Agency's District Customer Service Analyst notified the Newnan Post Office Postmaster of a District-wide rural route adjustment plan. The Postmaster was requested to submit a local adjustment plan for the needs of the office, but within the confines dictated by the District. The Newnan Post Office was comprised of 36 routes and was told to eliminate two routes and four auxiliary routes from within its territory.
Three managers were responsible for the creation of the new plan for the Newnan Post Office. Two were Caucasian and one (the Postmaster) was an African-American.
Complainant was assigned Route 30, which was a 40K route, meaning that she was guaranteed 40 hours of work each week.
On September 25, 2009, the Postmaster brought the carriers together to explain to all the carriers the changes that were going to take place as part of the route adjustments. Complainant was initially told by management that her route was going to increase from 40K to 45K, which was acceptable to Complainant. The Postmaster also gave the carriers approximately two weeks to review the changes and provide her with their comments or concerns. Because Complainant was satisfied with the proposed change communicated to her, she did not submit any comments.
Before the plan was formalized, further adjustments were made which resulted in Complainant's area being finalized as a 42K route, rather than a 45 K route. Her route increased, but her area did not increase as much as the territory in the adjacent areas. The carriers assigned to those adjacent areas are Caucasian.
Due to the short time given to make the adjustments, none of the carriers learned about the changes until the final adjustment plan had already been approved by the District. Complainant learned about the adjusted plan on October 15, 2009. On October 20, 2009, Complainant inquired how the routes were drawn and why those routes adjacent to hers had grown more than her area had grown. The manager told Complainant that Complainant's area had been "squared off" and that the territory was allocated based on technical, practical, and safety factors.
The record shows that management considered the fact that Complainant's area was a growing area and would be better served with an adjustment at 42K. The areas surrounding Complainant's route were viewed as low growth and those routes gained territory.
The Postmaster stated that she would look at the plan closely to make sure the routes were squared off properly. She testified that she did look and confirmed there were no errors, but the Postmaster did not notify Complainant. Complainant's area was adjusted to be a 42K route.
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 and the AJ held a hearing on October 19, 2011.
The AJ issued a decision on December 7, 2012. He concluded that Complainant failed to establish a prima facie case of discrimination because he found that she was not subjected to an adverse employment action because her territory had actually increased. He found that she was not treated less favorably than other similarly situated employees outside of her protected group.
First, the AJ reasoned that the route change from a proposed 45K to 42K was never part of Complainant's permanent terms of employment. She started with a route of 40K. When she was told of the possibility that her route would become 45K, neither the Postmaster nor the District Analyst had approved the plan. In addition, the AJ found that the final result of the adjustment plan provided Complainant with a minimal increase from 40K to 42K, which is not an adverse action.
Next, the AJ found that the three employees to whom Complainant compared herself were not similarly situated because the carriers had different territories with different growth predictions.
The AJ found that assuming that Complainant established her prima facie case, the record supports the Agency's articulated legitimate, non-discriminatory reasons (the distribution of territory met its safety rules and operational and logistical concerns, including the District's concern about the decrease in mail volume).
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.
This appeal followed.
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).
In this case, neither party presented a brief in support or opposition of this appeal.
The record shows that the AJ had the opportunity to consider the evidence and hear the witnesses. We find that the hearing record supports that AJ's findings; and we discern no reason to disturb the AJ's findings or the Agency's decision.
Accordingly, we AFFIRM the Agency's Final Order.
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
June 13, 2013
__________________
Date
2
0120131139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131139