Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120120695 (E.E.O.C. May. 22, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120120695

Hearing No. 532-2011-00070X

Agency No. 4C-440-0133-10

DECISION

On November 22, 2011, Complainant filed an appeal from the Agency’s August 31, 2011,
notice of final action 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. For the following reasons, the
Commission AFFIRMS the Agency’s notice of final action.

BACKGROUND

The record reveals Complainant worked for eleven years as a Clerk from January 1998 to
August 2009, until she was involuntarily transferred to the Carrier craft. From August 15,
2009, until June 20, 2010, Complainant was a Letter Carrier at the Cleveland Heights Post
Office. Subsequently, Complainant moved to the Shaker Heights Station after successfully
bidding on a Letter Carrier position, effective June 1, 2010.

On June 17, 2010, Complainant received a Notice of Removal for her performance at the
Cleveland Heights Station during the period of March 4, 2010, through May 6, 2010. Person
A, Supervisor Customer Services at the Cleveland Heights station was the supervisor who
caused the Notice of Removal to be issued to Complainant.

The Notice of Removal was signed by Person B, Manager Customer Services because Person
A was not at work on the day it was issued. The Notice of Removal stated that: (1) on April
29, 2010, Complainant was observed while delivering mail talking on the phone and wearing a
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radio; (2) on May 3, 2010, Complainant failed to make out her daily clock rings and failed to
“move” to the overtime assignment she was given and was observed “pulling her route down”
and “tying out swings” with DPS mail; (3) on May 4, 2010, Complainant failed to make her
daily scans; (4) on May 4, 2010, during a street observation a manager found Complainant’s
vehicle unlocked with the window on the driver’s side open with the emergency brake not set;
and (5) on May 5, 2010, there was undelivered Red Plum mailings found under the case for
route 1802 which was Complainant’s assigned route on May 4, 2010; and (6) since April 4,
2010, Complainant has had .72 hours of unscheduled absence and/or tardiness. The Notice of
Removal recognized that three Pre-Disciplinary Interview (PDIs) were conducted with
Complainant to discuss her performance deficiencies and to give her an opportunity to respond
to the performance deficiencies identified.

Complainant filed an EEO complaint dated October 27, 2010, alleging that the Agency
discriminated against her on the bases of sex (female) and age (over 40) when:

1. From September 2009 to March 2010, Complainant received Pre-Disciplinary
Interviews (PDIs) for returning back late from her route.

2. On June 17, 2010, Complainant was issued a May 27, 2010 Notice of Removal
for failure to maintain a regular work schedule/failure to follow
instructions/unacceptable work performance.

The Agency issued a Notice of Partial Acceptance/Partial Dismissal of Formal EEO Complaint
accepting issue (2) for processing. In the Notice, the Agency dismissed issue (1), pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.

At the conclusion of the investigation on the accepted claim, 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. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing. The AJ issued a decision without a hearing on August 23, 2011.

In his decision, the AJ noted that Complainant claimed the Notice of Removal was issued to
her because of her sex and age because she was originally a Clerk and the change from Clerk
duties to City Carrier duties was so great that it took her time to adjust. The AJ noted
Complainant did not dispute her job performance deficiencies as outlined in the discipline she
received. The AJ noted Complainant admitted that she was put on notice of her performance
deficiencies by the PDIs and that she received prior discipline related to performance that put
her on notice.

The AJ also found Complainant admitted that she did not know of any similarly situated co-
workers who were treated more favorably than she was. With regard to Employee 1 and
Employee 2, the AJ found they were not appropriate comparatives because there was no
evidence that Person A was aware that they pulled their routes down and tied out swings with
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DPS mail during the relevant time period. In addition, the AJ noted Complainant failed to
establish that Employee 1 or Employee 2 had performance issues similar to those documented
in Complainant’s Notice of Removal.

The Agency subsequently issued a notice of final action on August 31, 2011. The Agency
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

On appeal, Complainant states that recently one of her co-workers wrote a letter on her behalf.
Complainant attaches a September 18, 2011 letter from Co-Worker X.

ANALYSIS AND FINDINGS

As a preliminary matter, we first address Complainant's submission of new evidence on
appeal. As a general rule, no new evidence will be considered on appeal unless there is an
affirmative showing that the evidence was not reasonably available prior to or during the
investigation. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Ch. 9, § VI.A.3. Here, Complainant failed to make such a showing.
Accordingly, we decline to consider this new evidence on appeal. Even if we considered such
evidence, it would not change the decision in this appeal.

Additionally, we note that Complainant does not challenge the Agency's dismissal of issue (2).
The Commission has the discretion to review only those issues specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). Accordingly, we will not address the dismissal of issue (2) in this
decision.

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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
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employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute; nor are there any credibility determinations at issue.
Additionally, we find the record in the present case was fully developed. In the present case,
we find Complainant failed to prove by a preponderance of evidence that she was subjected to
discrimination based on her sex or age.

CONCLUSION

Accordingly, the Agency’s notice of final action is AFFIRMED.

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
0120120695

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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

May 22, 2013
Date