0120090711
08-25-2011
Dolores Charles, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Dolores Charles,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090711
Hearing No. 410-2006-00009X-MDL
Agency No. 4H300018305
DECISION
Complainant filed an appeal from the Agency’s October 20, 2008,
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 deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). 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 Mark Up Clerk at the Computerized Forwarding Unit in Atlanta Georgia.
On August 15, 2005, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. on May 28, 2005 and June 22, 2005, she was denied reasonable
accommodation after she submitted medical documentation;
2. on June 9, 2005, her supervisor did not keep her EEO hearing (held
in March and May 2005) confidential, and did not pay her for attending
the hearing; and
3. from 2004 to the time of the complaint, Complainant submitted
documentation but Human Resources would not provide her with the bid
packages she requested.
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). Complainant
timely requested a hearing and the AJ held a hearing on August 28, 2008,
and issued a decision on October 2, 2008. 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. The
instant appeal followed.
In her decision, the AJ noted that Complainant had filed 21 EEO complaints
since 1999, all of which involved the same supervisor (S). Complainant
could not provide a definite answer as to whether there were any findings
of retaliation or discrimination in her favor.
With respect to the denial of reasonable accommodation, the AJ found
that Complainant requested that she be given light duty and placed in a
different unit with a different supervisor than S. Complainant made an
allegation that she was subjected to harassment and retaliation by S.
The AJ found that a manager (M) offered Complainant two 30-day light
duty assignments at the Old National Station during the investigation of
her harassment claim by S. While Complainant worked at Old National,
she accumulated absences totaling 14 of 60 days, including an instance
of AWOL. The investigation concluded that Complainant’s allegations
of harassment were unsubstantiated. Complainant’s and the Agency’s
physicians cleared Complainant to return to work without restrictions,
other than a request that she not be on the same shift as S. Complainant
was offered a change in schedule to avoid S, but she refused the changed
schedule. The AJ noted that Complainant was not alleging that she
was disabled and the Agency was not under an obligation to reasonably
accommodate her as she demanded. Nonetheless, the AJ noted that the
Agency made various efforts to accommodate Complainant.
As to the issue of not being paid for EEO hearings, the AJ found that M
undertook an investigation and determined that Complainant had not been
paid for two hearings, and a pay adjustment was made to Complainant,
albeit eight months afterwards. As to the discussion of Complainant’s
EEO hearings, that discussion was with the Agency’s attorney and in the
presence of Complainant’s union representative, who was representing
Complainant at the time.
As to the issue of bid packages, management witnesses asserted that
Complainant did not initially receive them when requested because of a
change in human resources personnel. However, once Complainant called,
witnesses stated she was given an apology and the bid package was mailed
to her. Complainant conceded that she ultimately received the bid package.
In sum, the AJ found that although Complainant established a prima facie
case of retaliation, she did not show that any of the Agency’s reasons
for its actions were a pretext masking unlawful retaliatory motivation.
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).
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).
The AJ’s decision in this matter has thoroughly detailed the
evidence gathered at the hearing and during the investigation of
the complaint, and has properly applied the law to that evidence.
We conclude that substantial evidence supports the AJ’s findings
in this matter. Complainant has set forth a prima facie case of
reprisal based on the numerous EEO complaints she has filed against her
supervisor. However, she has failed to set forth sufficient evidence
to show that the proffered reasons for management’s actions were a
pretext for unlawful retaliation.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM that
Complainant was not subjected to unlawful reprisal as alleged.
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
August 25, 2011
__________________
Date
2
0120090711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090711