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

Equal Employment Opportunity CommissionJul 11, 2014
0120122692 (E.E.O.C. Jul. 11, 2014)

0120122692

07-11-2014

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


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120122692

Agency No. 1J603003111

DECISION

On June 13, 2012, Complainant filed an appeal from the Agency's May 23, 2012, final decision (FAD) 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).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Expeditor at the Agency's South Suburban Processing and Distribution Center facility in Bedford Park, Illinois.

On January 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:

1. On or about August 23, 2011, Complainant was issued a Notice1 of Removal.

The Agency characterized the claim differently, listing them as two claims: the first one alleging discrimination when Complainant was placed on Emergency Suspension and the second when she was issued the removal notice. We find, however, that the claims have merged into a single claim. 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. Specifically, the Agency found that management officials articulated a legitimate nondiscriminatory reason for their actions, namely that Complainant was placed on Emergency Suspension and ultimately removed after a remittance in the amount of $442.92 went missing after being signed for by Complainant. The Agency further found that Complainant failed to establish that the Agency's action was a mere pretext to mask discrimination.

ANALYSIS AND FINDINGS

We note initially that the Agency found that Complainant's EEO Counselor contact was untimely but the Agency nevertheless addressed the merits of the complaint. We further note that Complainant's removal notice was dated August 23, 2011 and it stated that the removal was effective thirty days from the date of the notice. As the record shows that Complainant contacted an EEO Counselor on September 26, 2011 we find that her Counselor contact was timely.

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.

Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination.

The Agency's legitimate nondiscriminatory reason for the removal is provided in the Removal Notice, which states that Complainant was charged with "Unacceptable Conduct Evidenced by Your Failure to Maintain the Security and Sanctity of Mail Entrusted to You." Report of Investigation (ROI) Exhibit 4. The Notice went on to state that on January 5, 2011, Complainant had been the last person to sign for an item of mail containing a bank deposit in the amount of $442.92 and that "[t]o date, this bank deposit has not been delivered or recovered by the" Agency. The Notice further stated:

You stated you were aware of the standard operating procedure for handling registered mail. However your actions indicate you were not following those procedures. The only explanation you could give for [another missing deposit in the amount of $155.65] was that the deposit . . . may have gotten lost in empty equipment. You were the last person to sign and received postal remittances via registered mail...

Id.

The Agency, having articulated a reason for the removal, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a mere pretext for discrimination, or otherwise show that discrimination occurred. Burdine, 450 U.S. at 252-53. Following a review of the record, we find that Complainant has failed to meet this burden. Complainant argues that another coworker (CW: Caucasian, male) "lost much more valued items and was not given an emergency place [sic] or a removal" but instead he "was given a 30 day on the clock suspension and I was issued an emergency suspension and removal." ROI, Affidavit A, pp. 4 and 6. The record shows that CW was not placed on emergency placement but was issued a Notice of Removal after he had signed for, and lost, a remittance in the amount of $1,441.45. The record further shows, however, that CW filed a grievance with the union and his removal was reduced to a 30-day on-the-clock suspension, while Complainant's grievance was not settled and she was ultimately removed from the Agency. The Agency argues in its FAD that "grievances are often settled for reasons that have nothing to do with the actual merits of a claim." FAD, p. 9. Noting that Complainant has presented no other evidence of animus against her protected bases on the part of management, we conclude that she has failed to prove that management's explanations for its actions were pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred and we AFFIRM the FAD.

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

July 11, 2014

__________________

Date

1 The date of the removal is not provided in the record.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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