0120082772
08-25-2008
Debra J. Lubert, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington,
D.C. 20036
Debra J. Lubert,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082772
Agency No. 4C-170-0001-08
DECISION
Complainant filed an appeal from the agency's April 30, 2008 final
decision 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
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
detailed to an Officer-in Charge (OIC) position at the agency's Shamokin
Dam Post Office in Shamokin, Pennsylvania.
On November 15, 2007, complainant filed an EEO complaint. Therein,
she alleged that she was subjected to unlawful discrimination on the
bases of sex (female) and in reprisal for prior protected EEO activity.
By letter dated November 21, 2007, the agency accepted the following
claim for investigation:
On or about October 2, 2007, complainant was issued a Notice of Removal
citing charges of improper conduct and unsatisfactory work performance.
At the conclusion of the investigation, complainant was provided 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).
In its final decision, the agency concluded that complainant failed
to establish that she was subjected to unlawful discrimination
and/or retaliation. The agency asserted that assuming arguendo that
complainant established a prima facie case of discrimination based on
sex or reprisal, the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency stated that complainant
engaged in various incidents of improper conduct and unsatisfactory work
performance. The agency further found that complainant's assertions
that the discipline was unwarranted due to her work ethic, dedication,
and lack of a disciplinary record were insufficient to establish pretext.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's final decision finding
no discrimination is improper. Complainant asserts that she believes
the actions she took were in accordance with agency regulations and the
collective bargaining agreement.
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 110, 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").
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
he 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 articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The record reflects that the agency articulated legitimate,
nondiscriminatory reasons for issuing the Notice of Removal (Notice).
The record contains a copy of the Notice to complainant dated October
2, 2007, from the Manager, Post Office Operations (M1). Therein, M1
provided, in pertinent part, that the Notice was being issued for the
following reasons: complainant sustained grievances, in her capacity as
OIC, for which she would have been the beneficiary; complainant opened a
certified letter, marked it as refused, and sent it back without return
postage; and complainant assigned herself and others free post office
boxes even though they did not qualify pursuant to agency regulations.
The record also contains an affidavit from M1. Therein, M1 reiterated
the reasons for the Notice. Specifically, M1 stated that "[complainant]
sustained these grievances as the OIC without seeking consultation or
input from her manager... [Complainant] was the beneficiary of the
grievance and the sustaining official as the OIC, this is purely a
conflict of interest..." M1 further asserts that complainant opened a
certified letter, resealed the envelope, and returned the letter without
additional postage and that this is contrary to postal regulations.
Finally, M1 stated that complainant violated postal policies pertaining
to providing customers with free post office boxes.
Upon review of the record, we find that complainant failed to establish,
by a preponderance of the evidence, that the agency's reasons for
its actions were pretext for discrimination and/or retaliation.
While complainant raises numerous assertions including, but not limited
to, her belief that she was acting in accordance with the collective
bargaining agreement and other postal policies and that she received
insufficient training, we find that these assertions are insufficient
to establish pretext.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 t.hat:
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 25, 2008
Date
5
0120082772