0120131828
08-22-2013
Cindy L. Lindquist, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Cindy L. Lindquist,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131828
Hearing No. 560-2012-00129X
Agency No. 4E-680-0040-11
DECISION
On April 4, 2013, Complainant filed an appeal from the Agency's March 26, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office facility in Pierce, Nebraska.
On August 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 2, 2011, Complainant's request for leave was denied despite having been approved for leave in January 2011. Complainant was also required to work on her non-scheduled day.
2. On July 30, 2011, Complainant was schedule to work on her non-scheduled day off.
3. On various dates from May 28 to July 30, 2011, Complainant was scheduled to work on her non-scheduled day.
4. On September 13, 2011, her requests for leave for October 7; November 21, and November 27, 2011, were denied.1
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 but subsequently withdrew her request. Consequently, 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.
This appeal followed. Complainant provided a copy of her new formal complaint she filed in 2013 as well as additional events which she believed constituted unlawful discrimination. The Agency requested that the Commission affirm its finding of no discrimination.
ANALYSIS AND FINDINGS
As an initial note, on appeal, Complainant provided new claims of discrimination and a new complaint which she filed with the Agency. These new claims and new appeal are not properly raised before the Commission. As such, we will not address Complainant's assertion that she has subsequently subjected to discrimination. The Commission shall only address those claims addressed by the Agency's final decision.
Standard of Review
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
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record indicated that Complainant was a full time City Carrier with the Agency during the relevant time. On May 20, 2011, Complainant's coworker (Co-worker) passed away. The Postmaster noted that the Co-worker covered Complainant on her non-scheduled days and other absences. The Postmaster averred that she had tried to borrow employees from other offices but was not able to do so. Because of the loss of the Co-worker, the Postmaster indicated that Complainant had to come to work on her non-scheduled days and days on which she requested leave. As such, despite the previous grant of leave for July 2011, as asserted in claim (1), Complainant was required to work on July 2, 2011. In addition, due to the loss of the Co-worker and the lack of coverage, Complainant was required to work on her non-scheduled days in May 2011 through July 2011, as indicated in claims (2) and (3). Finally, in response to claim (4), the Sales Service Distribution Associate averred that she was new to the office. She stated that she made a mistake in processing Complainant's request. Once she discovered the correct information regarding Complainant's schedule, she approved Complainant's leave request. As such, Complainant was not denied leave as asserted in claim (4). Upon review, we find that the Agency has provided legitimate, nondiscriminatory reasons for its actions. The Commission turns to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant merely asserted that her sex, age and prior EEO activity were the reasons for the Agency's action without supporting evidence. Therefore, we conclude that Complainant has not shown that she was subjected to disparate treatment.
Harassment
It is well-settled that harassment based on an individual's sex, age, and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his/her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on age, sex and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that Complainant has not shown that she was subjected to events because of her age, sex and/or prior EEO activity. As such, we conclude that Complainant has not established that she was subjected to unlawful harassment.
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 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
August 22, 2013
__________________
Date
1 We note that Complainant alleged several additional claims; however the Agency dismissed those events. Further, Complainant failed to appeal the dismissal of those claims. As such, we shall not address the dismissed claims in our decision.
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0120131828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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