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

Equal Employment Opportunity CommissionApr 23, 2014
0120120438 (E.E.O.C. Apr. 23, 2014)

0120120438

04-23-2014

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


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120120438

Hearing No. 430-2009-00055X

Agency No. 4H-370-0088-08

DECISION

Complainant filed an appeal from the Agency's September 23, 2011, final order 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 accepts the appeal 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 Murray Lake Hills Station facility in Chattanooga, Tennessee.

On April 21, 2008, Complainant contacted an EEO Counselor regarding an overtime issue. On July 19, 2008, Complainant filed an EEO complaint alleging that the Manager of Customer Service (Manager) retaliated against her for protected EEO activity under Title VII when, on June 26, 2008, the Manager put Complainant off the clock.

Complainant identified the prior protected EEO activity as her activity during the informal processing of the case at bar. Complainant acknowledged that her EEO contact pertained to allegations against another official and did not involve the Manager of Customer Service, who had not yet begun to work at the Murray Lake Hills Station.

On June 26, 2008, following a verbal altercation, the Manager placed Complainant off the clock. Complainant acknowledged that she had not informed the Manager that she had sought informal EEO counseling.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. She requested a hearing before an EEOC Administrative Judge (AJ).

The AJ held a two-day hearing on June 2, 2010 and June 3, 2010. Complainant offered supplemental testimony to show that she was not at fault for the altercation. The AJ noted that the only issue presented for the hearing was whether the Manager retaliated against Complainant when she put her off the clock. The AJ limited the testimony of witnesses for both parties.

The Manager of Customer Service testified that Complainant's immediate supervisor informed her (the Manager) that Complainant had threatened to file an EEO complaint against another official. Complainant denied having made the statement. Complainant also denied asking her supervisor for an EEO telephone number. The evidence reflects that, on an unspecified date, Complainant asked her immediate supervisor for a telephone number to reach an EEO Counselor, while informing him that she was going to file an EEO complaint. The record does not reflect any evidence of a prior EEO complaint filed by Complainant against the Manager. Complainant testified that the Manager did occasionally work week at the Murray Lake Hills Station before she was assigned there. Complainant testified that she believed the Manager was aware of her EEO activity.

The AJ's decision relied on her credibility assessments. The AJ found that Complainant's versions of the facts changed significantly and this hurt Complainant's credibility in general. The AJ found that Complainant engaged in protected activity and had been placed off the clock on June 26, 2008, by the Manager of Customer Service. The AJ found that "there was not any credible evidence presented to show that [the named official] was aware of the Complainant's activity from any other source before she placed her off the clock or that [the named official] was motivated to harm the Complainant for calling the EEO office about [another named official]."

The AJ reasoned that it is critical to determine when the alleged discriminating official became aware. The Manager acknowledged that she had been made aware of Complainant's protected activity when Complainant's supervisor told her that Complainant had asked for the EEO telephone number and when the EEO Counselor visited the Station on July 2, 2008. The AJ found that it cannot be determined whether the conversation was held before or after the June 26, 2008 incident at issue. The AJ found that Complainant "has not established that [the named official] the alleged wrongdoer had knowledge of her protected EEO activity before [she] placed her off the clock. Without such knowledge [the official] was not in a position to retaliate against the Complainant for her EEO protected activity." The AJ stated there also was no credible evidence presented that her protected activity was a factor in any way in the challenged employment action. The AJ issued a decision in favor of the Agency.

The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

This appeal followed.

ANALYSIS AND FINDINGS

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.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).

On appeal, Complainant argues that the AJ's finding (that the alleged responsible official did not have knowledge of Complainant's prior EEO activity at the time she was put off the clock) is not supported by the evidence. Complainant also maintains that the Agency's articulated legitimate reason for placing her off the clock is without merit. Finally, Complainant argues that the AJ committed legal error by not allowing testimony from all of Complainant's witnesses.

Reprisal

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. Soc. Sec. 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 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. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In this case, the AJ found that Complainant failed to establish an essential element of her prima facie case. The AJ reasoned that Complainant failed to prove with credible evidence that the alleged discriminating official was aware of Complainant's prior EEO activity at the time of the alleged retaliatory action. Complainant, herself, admitted that she had not told the alleged responsible official of her prior activity.

We find that substantial record evidence supports the AJ's finding.

In addition, we find that the AJ's analysis and application of the law was appropriate. Although the Agency articulated its reasons for its action, it was not necessary for the AJ to address the Agency's articulated reasons. The AJ found that Complainant failed to meet her burden to establish a prima facie case of retaliation. The decision properly rested on that finding.

Finally, we do not find that the AJ committed error when she limited the witness list for both parties. Complainant offered additional witness testimony on the June 26, 2008 incident and whether the Agency's action was warranted. We find that the offered evidence was not necessary in this case where the critical issue was retaliation and whether the alleged official knew of her prior activity when the action was taken.

For all of these reasons, we find no reason to disturb the final action, which adopted the AJ's post-hearing factual findings and conclusions of law.

Accordingly, we AFFIRM the Agency's final action.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we

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 tends 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

April 23, 2014

__________________

Date

2

0120120438

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013