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

Equal Employment Opportunity Commission

Jan 30, 2013

0120112584 (E.E.O.C. Jan. 30, 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
(Southwest Area),
Agency.

Appeal No. 0120112584

Hearing No. 461-2009-00114X

Agency No. 4G-700-0102-09

DECISION

On April 13, 2011, Complainant filed an appeal from the Agency’s March 24, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Bertrand Station in Lafayette, Louisiana. Complainant’s supervisor was the
Manager of Customer Service (S1).

Complainant filed an EEO complaint dated April 8, 2009, as amended, alleging that the
Agency discriminated against her on the bases of race (African-American), color (black), and
sex (female) when:

1. On March 4, 2009, a management official told Complainant she was an unsafe
driver; and
2. On March 25, 2009, the Agency issued Complainant a Notice of Removal based on
failure to properly perform duties and unsafe driving practices.

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
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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 March 17, 2011, granting summary
judgment in favor of the Agency.

In his decision, the AJ noted that as the result of a June 2, 2008 route inspection, S1 found
Complainant committed several driving infractions including backing her vehicle on school
grounds during a route inspection. The AJ noted that Complainant then received safety
training entitled "Avoid Backing" and received a 14-Day No Time-Off Suspension (i.e. the
suspension was stayed, but a decision maker could consider the suspension if future infractions
resulted in disciplinary actions) for unsafe driving practices.

The AJ found that on March 2, 2009, S1 conducted a similar street inspection of
Complainant's route. The AJ noted that during the inspection, S1 observed Complainant
backing her vehicle in the parking lot of an elementary school known by Complainant to be
attended by special needs children, in particular children with hearing impairments. The AJ
found that immediately after observing Complainant backing her vehicle up at the school, S1
told her not to back her vehicle at that location again. The AJ noted that later the same day,
Complainant drove forward into a 100 foot driveway and then backed up to enter traffic on a
major city street with a 40 mile per hour speed limit. Additionally, the AJ noted that
Complainant also backed her vehicle 10 to 15 feet up Senior Street in order to turn around in a
Daycare facility located across the street. The AJ explained that based on her unsatisfactory
driving record, S1 revoked Complainant’s on-duty driving privileges on March 4, 2009, and
advised her to seek a non-driving position.

The AJ noted that on March 26, 2009, S1 issued Complainant a Notice of Removal for failure
to properly perform her duties and for unsafe driving practices. The AJ noted S1 considered
the following past disciplinary actions against Complainant when issuing the Notice of
Removal: (1) letter of warning for unsatisfactory work performance failure to properly secure
Postal Vehicle (October 4, 2007); (2) notice of 7-Day No Time-Off Suspension for failure to
follow instructions (April 28, 2008); and (3) notice of 14-Day No Time-Off Suspension for
unsafe driving practice (June 20, 2008).

The AJ noted the removal was never effected and Complainant's driving privileges were
reinstated, and she was returned to full duty. The AJ also noted that during this entire time
period, Complainant had a job-related injury and remained compensated under the Federal
workers’ compensation (OWCP).

The AJ noted that in an attempt to show pretext, Complainant stated that other letter carriers
driving Agency vehicles were never told by management during route inspections that they
could not back up their vehicles. The AJ noted the record contained three unsworn statements
from three other drivers outside of Complainant's protected classes who stated that when they
were assigned the route as letter carriers in past years, they would back up on Senior Street at
the same location, and in the same manner as Complainant did on March 2, 2009. However,
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the AJ noted that in his sworn declaration S1 stated that he never observed those employees
under route inspections performing similar infractions as Complainant’s infractions (i.e.,
backing at schools). Moreover, the AJ noted that in response, Complainant conceded that S1
did not inspect those three drivers.

With regard to the comparatives, the AJ noted that the Senior Street infraction was one of the
actions S1 observed on March 2, 2009. However, the AJ found Complainant’s backing her
vehicle up on school grounds was considered the most serious infraction. Moreover, the AJ
noted that S1 was troubled by Complainant's defensive attitude during the investigative
interview regarding the March 2, 2009 incidents.

The AJ noted Complainant argued that S1 overstated the seriousness of the infractions (which
she disputes were infractions), and overreacted to the seriousness of those infractions by
proposing her removal. However, the AJ found it is axiomatic that striking a hearing impaired
student with an Agency vehicle because the driver failed to see the student while backing up
would be a catastrophic tragedy on a number of levels. Moreover, the AJ noted Complainant
committed other driving and performance infractions, admittedly of a less serious nature than
backing up her vehicle at a school, during the same route observation. The AJ concluded that
Complainant did operate the vehicle in an unsafe manner and committed some performance
infractions. The AJ found Complainant failed to show the Agency acted with discriminatory
animus.

The Agency subsequently issued a notice of final order dated March 24, 2011. The Agency’s
notice of final order fully implemented the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 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”).

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
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articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Upon review of the record we find that the AJ properly found that Complainant’s complaint
was suitable for summary judgment. The record is adequately developed and there are no
disputes of material fact. In the present case, the Agency stated it revoked Complainant’s
driving privileges and issued a Notice of Removal following a route inspection in which among
other infractions, Complainant backed up the Agency vehicle at a school which she knew was
attended by children with hearing impairments. The record reveals that Complainant had been
disciplined following a route inspection in June 2008 for various infractions, including backing
up her Agency vehicle at a school. Complainant failed to show by a preponderance of
evidence that she was treated differently than similarly situated individuals or that the Agency’s
actions were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination 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,
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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

January 30, 2013
Date