01a54260
11-07-2005
Beverly A. Pearson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Beverly A. Pearson v. United States Postal Service
01A54260
November 7, 2005
.
Beverly A. Pearson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A54260
Agency No. 4-G-770-0322-03
Hearing No. 330-2004-00036X
DECISION
JURISDICTION
On July 22, 2004, complainant filed an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. On appeal, complainant requests
that the Commission reverse the agency's acceptance and implementation
of an EEOC Administrative Judge's (AJ) finding of no discrimination.
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.
PROCEDURAL HISTORY
The record reveals that complainant, a Letter Carrier at the agency's
Foster Place Post Office in Houston, Texas, filed a formal EEO complaint
on May 30, 2003, alleging that the agency discriminated against her
on the bases of race (black), sex (female), disability (knee injury)
and in reprisal for prior EEO activity when:
(1) on January 28, 2003, her medical documentation for February 7,
2003, was denied;
on February 19, 2003, management rejected her grievance;
on March 21-22, 2003, she was not allowed to work her non-scheduled
days;
on April 2, 2003, her request to be excused from overtime was denied;
on April 1, 2003, she was denied a one-hour swing shift;
on April 2, 2003, her manager threatened to send her home;
on March 7, 2003, her case labels were changed for Route 2121;
on February 13, 2003, she was required to provide documentation to
justify running over eight hours;
on February 19, 2003, she was denied penalty overtime;
on February 25, 2003, she was denied 8 hours of overtime;
on February 26, 2003, she was the only carrier instructed to case all
the mail
on March 14, 2003, management harassed her concerning her requests for
schedule adjustments for doctor's appointments while other carriers
are allowed schedule adjustments;
on March 12, 2003, she was issued a letter of warning that was reduced
to a discussion;
on April 3, 2003, the union president had to contact the area manager
in order for her to file grievances;
on April 4, 2003, her doctor's release was denied;
on April 14, 2003, more changes were made to her route;
on April 15, 2003, she received a pre-disciplinary discussion;
on April 29, 2003, she was not allowed to report early while other
substitutes were allowed to report early;
on April 23, 2003, her job was threatened and the manager attempted to
interrogate her;
on April 29, 2004, she was denied overtime and ordered off the clock;
on April 4, 2004, she was continuously denied overtime.
The agency dismissed issues (2), (6), (13), (14), (17) and (19) for
failure to state a claim.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination on the bases of race, sex or disability or in reprisal
for previous EEO activity.
The AJ concluded that complainant failed to establish a prima facie
case of race or sex discrimination. Specifically, the AJ found that,
while complainant had established that several adverse actions were taken
against her, she failed to identify any non-Black Letter Carriers who were
treated more favorably than herself. Further, he found that the agency
articulated legitimate, nondiscriminatory reasons for its actions and
that complainant failed to establish that the reasons were pretextual.
With respect to her contention that she was discriminated against on
the basis of disability, the AJ found that her knee impairment did not
prevent her from performing any major life activities and she was not
an individual with a disability. Concerning her claim of reprisal, the
AJ found that, assuming, arguendo, that she established a prima facie
case of reprisal, the agency articulated legitimate, nondiscriminatory
reasons for its actions and complainant was unable to demonstrate that
the agency proffered reasons were pretextual. The agency's final order
implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency requests that we affirm its final order.
STANDARD OF REVIEW
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.
ANALYSIS AND FINDINGS
Initially, we address the agency's dismissal of issues (2), (6), (13),
(14), (17) and (19) for failure to state a claim. Complainant failed
to raise the dismissal of these issues to the AJ and did not raise
the dismissals on appeal. Accordingly, we will not further review
the agency's dismissal of issues (2), (6), (13), (14), (17) and (19)
for failure to state a claim.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
With respect to complainant's claim of retaliation, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), 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. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
We find that the AJ correctly found that complainant failed to establish
a prima facie case of race and sex discrimination. Specifically,
complainant failed to show that Letter Carriers, not in her protected
classes, were treated more favorably than herself. Further, the agency
articulated legitimate, nondiscriminatory reasons for its actions and
that complainant failed to establish that the reasons were pretextual.
For example, the Manager of the Foster Place Post Office stated that
complainant's case labels were changed for Route 2121 in order to make her
route more efficient because she was passing by a delivery location and
returning to it later. Complainant cited no evidence of discriminatory
animus regarding the changing of the case labels.
With respect to her claim of reprisal, we find that she has failed to
establish a prima facie of reprisal because she did not show that there
was any nexus between her prior protected activity and the alleged adverse
actions taken against her. Assuming, arguendo, that complainant was an
individual with a disability, she failed to produce evidence that the
agency's actions were motivated by her disability. Complainant failed
to show evidence of pretext.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We conclude that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race, sex or disability. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
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
November 7, 2005
__________________
Date