0120102111
08-11-2010
Barbara J. Hunter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Barbara J. Hunter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102111
Agency No. 4E640007909
DECISION
On April 19, 2010, Complainant filed an appeal from the Agency's March 24, 2010, 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). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly determined that Complainant failed to show that she had been discriminated against on the bases of sex and in reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Carthage Post Office, in Carthage, Missouri. The record indicates that on May 6, 2009, Complainant's supervisor (S1) requested that she be removed from employment for falsifying official rural count documents (ten new delivery addresses) for personal gain. Investigative File (IF), Ex. 3 at 1. An intensive investigation ensued, in which Complainant was questions about the discrepancies and given an opportunity to respond. Id. A database verification was subsequently performed by an independent contractor and a physical verification was conducted by the Agency Postmaster. Id. The verification results indicated that eight of the ten new delivery addresses did not have structures to match the addresses. Id. The addition of the false addresses mentioned equated to approximately 31 delivery minutes, a route evaluation change from K-42 to K-43, and an increase in salary of approximately $1795.00 per year. Id. The record indicates that on May 12, 2009, Complainant was issued a Notice of Removal charging her with Improper Conduct. Id.
On September 9, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII when:
1. On May 12, 2009, she was issued a Notice of Removal, which was reduced to a 14 Day Suspension in the grievance process.
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.
CONTENTIONS ON APPEAL
Complainant submits no arguments on appeal.
On appeal, the Agency argues that management provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination. Accordingly, the Agency requests that the Commission affirm its final decision.
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").
Disparate Treatment - Sex and Reprisal
The analysis of a claim of disparate treatment is patterned after the three-step scheme announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the Complainant has established a prima facie case, the Agency is required to articulate a legitimate, nondiscriminatory reason for its actions; to prevail, Complainant must demonstrate, by a preponderance of the evidence, that the Agency's reason(s) for its action was a pretext for discrimination, i.e., that the Agency's reason was not its real reason and that it acted on the basis of discriminatory animus. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).For purposes of analysis of Complainant's claims, we assume, arguendo, without so finding, that complainant established a prima facie case of disparate treatment discrimination on the bases of reprisal and sex.
As indicated above, the Agency provided legitimate non-discriminatory reasons for its actions, i.e., management testified that repeated service talks were given before and during mail count to all rural carriers, in which the importance of submitting correct data was stressed. IF, Aff. C, at 4. Specifically, management testified that rural carriers were informed that edit books had to match the PS Form 4003 Route Description. Id. Management averred that Complainant had attended these sessions and was therefore aware of applicable Postal policies. Id. Management testified that Complainant, in contravention of the above policies, inputted old address data as new deliveries. Id. After an investigation, it was determined that Complainant was at fault and she was issued a notice of removal for falsifying official Postal documents for personal gain, which violated applicable Postal Policies and Regulations. IF, Aff. B at 6.
Pretext
While Complainant avers that the Agency's reasons were an attempt to have her "set-up" and that its punishment was too severe, we find these assertions to be without merit. An Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that beyond her conclusory allegations, Complainant submits no evidence or argument indicating that the Agency's reasons are a pretext for discrimination.
CONCLUSION
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final 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
____8/11/10______________
Date
2
0120102111
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102111