0120102169
08-20-2010
Anita Y. Clements, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita Y. Clements,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120102169
Hearing No. 410-2009-00366X
Agency No. 1-H-304-0012-09
DECISION
On April 15, 2010, Complainant filed an appeal from the Agency's final order issued on March 18, 2010, 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether Complainant proved, by a preponderance of the evidence, that she was discriminated against based on sex and in retaliation for engaging in protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant (female, prior EEO activity) worked as a Manager, Maintenance Operations Support, EAS-19, at the Agency's Atlanta Bulk Mail Center. On December 9, 2008, she requested six hours of personal leave to attend to what she deemed a sinus infection which her supervisor (the Supervisor) approved. On December 20, 2008, while reviewing the leave requests, the Supervisor realized that Complainant had requested personal leave instead of sick leave, which under Agency policy was impermissible because managers were only allowed to take four hours of personal leave at a time. On December 24, 2008, he informed Complainant that she had to make up the two hour difference. Complainant made up the time using compensatory time hours.
From February 2, 2009 to June 2009, Complainant attended four different training courses. The other three managers (all male) who reported to the Supervisor attended three. Complainant believes that the quality of her training was not as high as that of her male comparators because their trainings related to moving up in management whereas hers did not. Regarding one such training, Complainant and her co-workers received an e-mail notification from the Supervisor requesting a response if they were interested in a training to be held in Norman, Oklahoma. Complainant did not respond; therefore, the Supervisor added her to the wait list. Complainant did not take the course in Norman but eventually took a locally held version of the same course.
On March 13, 2009, Complainant learned that the Supervisor asked another employee to perform capital property duties typically assigned to her. The record reflects that this duty involves the transfer of postal equipment from one facility to the next. Complainant learned of this when she contacted by an employee of a sister facility where equipment had been sent to ask questions about the shipment. According to Complainant, this was a duty which had been assigned to her in writing by the Supervisor's predecessor. The Supervisor testified that he knew nothing of the written document Complainant obtained from the prior Supervisor and assigned capital property duties on an ad hoc basis.
Believing she was the victim of sex and reprisal discrimination, Complainant filed a formal EEO complaint on April 9, 2009. In the complaint, Complainant alleged discrimination when the Agency denied her request for personal leave on December 24, 2008, did not allow her to attend training on February 2, 2009, and continuingly withheld information from her resulting in some of her core duties and responsibilities being redirected on or about March 13, 2009 and April 3, 2009.
The Agency accepted Complainant's complaint for investigation and at the conclusion thereof provided Complainant a copy of the report of investigation and notice of right to request either a hearing before an EEOC Administrative Judge (AJ) or final decision on the record. Complainant requested a hearing before an AJ thus her case was forwarded to the appropriate EEOC District Office for consideration. The AJ assigned to the case held a hearing on January 27, 2010 and subsequently issued a bench decision in which she found that Complainant failed to prove discrimination. The Agency's final order adopted the AJ's decision. Complainant then filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant essentially reiterates the arguments she raised before the Agency and at the hearing.
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).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, because 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, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The AJ found credible the Supervisor's testimony that Complainant was asked to make up the two hours of personal leave whereas a male co-worker (CW-1) who had requested 5 1/2 hours of leave during the same time period was not because the two had requested time off for different reasons. According to the Supervisor's, Complainant requested time off to attend to a personally-related matter, but CW-1 had to leave town in order to travel to attend to a sick and dying relative. This was not considered personal leave. (Administrative Judge's January 27, 2010 Decision p. 11).
The AJ did not credit Complainant's allegation that her male co-workers were given trainings related to moving up in management and found that to the extent the managers were sent to different training programs, Complainant had a different job with different duties. (AJ Decision, p. 8). The record indicates that each of the four managers who reported to the Supervisor during the time spanning this complaint all had different duties and all of them received different trainings. The AJ also found credible the Supervisor's testimony that Complainant was not able to take the course in Norman because she did not respond to the Supervisor's e-mail. (AJ Decision, p. 13). Complainant presented no evidence to contradict this finding.
Regarding Complainant's allegation that the Supervisor took away her capital property duties, the AJ found, and the record reflects, that these duties were not a part of Complainant's position description. The AJ credited the Supervisor's testimony that the written document Complainant received from his predecessor about these duties was unknown to him, and that he assigned these duties on an as-needed basis as shipments came up. (AJ Decision, p. 13). The AJ noted that Complainant's own witness stated that he sometimes performed capital shipment duties as did Complainant.
We find that the AJ's findings of fact are supported by substantial evidence contained in the record. We also find that Complainant has failed to establish that Agency's proffered reasons for its actions are a pretext to mask unlawful discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
____8/20/10______________
Date
2
0120080366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102169