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

Equal Employment Opportunity Commission

Jun 20, 2013

0120113349 (E.E.O.C. Jun. 20, 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. 0120113349

Hearing No. 450-2011-00032X

Agency No. 4G-752-0205-10

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 26, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Kinglsey Station in Garland, Texas. In August 2007, Complainant suffered an
on-the-job injury and was placed on limited duty. Complainant had surgery in April 2009 and
returned to work in November 2009. Complainant had no work restrictions and started on a
new route on November 3, 2009. Complainant completed two days of training, worked two
weeks, and then took nine days of scheduled annual leave through the end of November. After
several weeks on the route, Management believed that Complainant, as a veteran carrier, was
underperforming and that her requests for overtime and assistance should not have been
necessary. In addition, Complainant accumulated multiple instances of unauthorized overtime
in December 2009, and management received two complaints from customers who claimed that
Complainant was often rude to them.

Around 6:00 p.m. on January 4, 2010, the acting supervisor (AS) called Complainant to find
out why she had not returned to the station from her route. Complainant told AS that she was
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still delivering mail and that it would take her another 45 minutes to finish the route. AS
instructed Complainant to continue delivering the mail and informed her that she had already
gone into penalty overtime. Complainant returned to the station about 40 minutes later with
undelivered mail. AS asked Complainant why she did not deliver the mail as he had
instructed, and Complainant replied that it was dark and not safe. Complainant clocked out
and AS informed the Acting Station manager (M1) of the undelivered mail. AS took pictures
of the undelivered mail and then delivered it himself. When AS returned to the station, he
inspected the postal vehicles as part of his closeout duties and discovered “raw” first class mail
left in Complainant’s vehicle.

On January 5, 2010, M1 placed Complainant in an emergency off-duty status for returning to
the station with undelivered mail. On January 15, 2010, M1 held a pre-disciplinary interview
with Complainant. M1 believed that Complainant was evasive with her responses during the
interview. On January 18, 2010, Complainant was issued a Notice of Removal for
unacceptable performance and failure to follow instructions.

On April 30, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, management did not allow sufficient time for her to learn a new route; she
was denied requests for time to complete her route; she was subjected to derogatory comments
and yelled at over the phone; she was placed in emergency off-duty status; and she received a
Notice of Removal on January 30, 2010.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on April 26, 2011, and issued a decision on May 16, 2011.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to the claims regarding her route,
Complainant’s morning supervisor (S1) testified that he expected Complainant to be fully up to
speed on the new route within two weeks, and he approved or denied Complainant’s requests
for auxiliary assistance based on her mail volume and workload. S1 further testified, however,
that Complainant requested overtime on a daily basis regardless of whether her mail volume
was low or high. M1 testified that Complainant’s performance as a carrier was not satisfactory
and that she worked unauthorized overtime on a daily basis. Further, M1 testified that it
should take a carrier a few days to learn a new route, not six weeks as Complainant believed.
Additionally, M1 testified that she received two customer complaints about Complainant, and
both were racially-related.

Regarding the January 4, 2010 incident, AS testified that he called Complainant to find out
why she was not back in the office and Complainant told him that she was still delivering mail.
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AS denied ever yelling or raising his voice at Complainant. AS testified that Complainant then
stated rudely that she just needed to know whether to deliver the mail or bring it back. AS
instructed Complainant to continue delivering the mail. AS testified that Complainant returned
to the station 40 minutes later and had not delivered the mail as he instructed. When AS asked
why she did not deliver the mail, Complainant stated it was dark and was not safe despite it
being dark when AS initially spoke to her. AS informed his manager, took pictures of the
undelivered mail, and delivered the mail himself. Later, AS found pieces of “raw” mail in
Complainant’s postal vehicle.

M1 testified that she placed Complainant in emergency off-duty status and walked her out of
the building on January 5, 2010, for delaying mail delivery the previous day. M1 testified that
Complainant was given an opportunity to fully respond during the pre-disciplinary meeting on
January 15, 2010. Complainant’s explanations were not acceptable and as a result,
Complainant was issued the Notice of Removal.

The AJ concluded that Complainant had presented no evidence that the Agency’s reasons for
its actions were pretextual. Additionally, the AJ determined that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ
found that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that reprisal and her perceived disability were the only
reasons Agency management took adverse actions against her. Further, Complainant claims
that Agency management officials gave contradictory testimony and fabricated documentation
to build a discipline case against her. In addition, Complainant argues that the AJ erred in
excusing an Agency witness from testifying at the hearing and for denying her request that a
document be admitted into evidence. Accordingly, Complainant requests that the Commission
reverse the final order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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
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testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

As an initial matter, the Commission notes that on appeal, Complainant contended that the AJ
erred in excusing the Officer-in-Charge (OIC) from testifying at the hearing. OIC was
available at the hearing; however, the Agency withdrew him as a witness believing he could
not offer any additional relevant testimony. Complainant objected and stated that she intended
to elicit testimony relating to why he submitted an affidavit during the investigation despite not
being an identified responsible management official. The AJ allowed the Agency’s withdrawal
of OIC as a witness after determining that OIC had no relevant testimony to offer as he was
not at the station at the time of the events in question. After a careful review of the record, the
Commission finds no abuse of discretion by the AJ. The Commission notes that EEOC
regulations and Commission precedent provide AJs with broad discretion in the conduct of a
hearing and related proceedings. See 29 C.F.R. § 1614.109(e); see also EEO MD-110, at 9-
10.

Disparate Treatment

To prevail in a disparate treatment claim, 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.
Specifically, management testified that Complainant was properly trained on her new route and
should have been proficient after one or two weeks. Hr’g Tr., 262, 290-91. Management
testified that Complainant’s performance on the route was not satisfactory, she requested
overtime or assistance daily regardless of mail volume, and she had received two customer
complaints. Id. at 290. Additionally, on January 4, 2010, AS called Complainant to find out
why she was late returning to the station. Id. at 221. AS denied yelling at Complainant;
rather, he testified that he instructed Complainant to deliver the remaining mail. Id. at 222.
Complainant returned to the station without delivering the mail and AS later discovered raw
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mail in her postal vehicle. Id. at 224-26. AS informed M1 about the incident and M1 placed
Complainant in emergency off-duty status that next day based on her usage of penalty overtime
and non-delivery of mail the previous day. Id. at 297-99. M1 held a pre-disciplinary
interview with Complainant and believed that Complainant’s responses were evasive. ROI, at
336. M1 ultimately decided to issue Complainant the Notice of Removal for unacceptable
performance and failure to follow instructions. Id. at 479.

The Commission finds that the AJ's determination that Complainant failed to establish pretext
as to these claims is supported by substantial evidence in the record. The record and facts
gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were
pretext for discrimination or reprisal. Moreover, a finding of a hostile work environment is
precluded by the Commission’s determination that Complainant failed to establish that the
alleged actions were motivated by discriminatory or retaliatory animus. See Oakley v. U.S.
Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the Commission finds
that Complainant was not subjected to discrimination, reprisal, or a hostile work environment
as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 (Nov. 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:

______________________________ June 20, 2013
Carlton M. Hadden, Director Date
Office of Federal Operations