0120102586
05-26-2011
Edith P. O’Connell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Edith P. O’Connell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120102586
Hearing No. 520-2010-00235X
Agency No. 4B-018-0076-07
DECISION
On May 11, 2010, Complainant filed an appeal from the Agency’s April
22, 2010, 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated
against based on her race, sex, national origin, and age when she was
terminated from her position as a Temporary Rural Relief Carrier.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Temporary Relief Rural Carrier at the Agency’s Tewksbury facility
in Massachusetts. On August 28, 2007, while delivering mail, Complainant
had an incident with her Agency vehicle wherein while driving close
to the side of the road, hanging tree branches cracked the side view
mirror of her Agency vehicle. Complainant reported the incident to the
Postmaster (White, female, 47). The Postmaster met Complainant on the
scene and questioned her about the accident. The Postmaster thereafter,
suspended Complainant’s postal driving privileges and drove Complainant
back to the office. Another employee finished Complainant’s route.
The Postmaster concluded based on the inquiry that the accident was
preventable. On August 30, 2007, Complainant was issued a Notice of
Separation, removing her from employment effective August 28, 2007,
due to an overall inadequate work performance to include the motor
vehicle incident.
On December 28, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Asian),
national origin (Filipino), sex (female), and age (55) when she was
terminated from her position as a Temporary Rural Relief Carrier.
Complainant maintained that, during her entire two years at the Post
Office, she was never counseled about any performance issues and was told
that she was doing a good job by the Postmaster. She also maintained
that the damage to the vehicle was not her fault. Complainant felt that
her race and national origin played a role in her termination because;
she was the “only Filipino” at the office. She also maintained that
because she was an older woman, she was considered expendable and that
it was easy to blame her for the vehicle damage.
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 March 31, 2010,
and issued a decision on April 15, 2010. The AJ issued a bench decision
which found that Complainant failed to identify any other employee
outside of her protected groups that incurred a preventable motor
vehicle accident and was not terminated. The AJ determined that the
Agency articulated a legitimate, nondiscriminatory reason for its action,
namely, that Complainant was terminated from her position because of the
August 2007, postal vehicle damage and for unsatisfactory performance
which included customer complaints for misdelivery of the mail and for
frequent tardy mail delivery. The AJ found that Complainant failed
to show that the Agency’s reasons were pretext for discrimination.
The AJ noted the testimony of the Postmaster that a 42 year old black
male temporary carrier and a younger, white, female temporary carrier
both were removed after having preventable vehicle accidents.
The AJ also noted that Complainant acknowledged during the hearing
that her supervisor had previously talked to her about her performance.
She also admitted that she occasionally returned late with mail from her
route. 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.
CONTENTIONS ON APPEAL
On appeal, no new contentions were provided by either Complainant or
the Agency.
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. 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).
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has
established a prima facie case, the burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to the Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715-16 (1983).
In the instant case, we find that there is substantial evidence to
support the AJ’s determination that Complainant failed to demonstrate
that she was discriminated against as is alleged. Specifically, we
find that, even if we assume arguendo that Complainant established
a prima facie case as to all bases alleged, the Agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
Complainant was terminated from her position because of the August 2007,
postal vehicle damage and for unsatisfactory performance which included
customer complaints for misdelivery of the mail and for frequent tardy
mail delivery. The Commission finds that no evidence was presented
which suggests that any other Temporary Relief Rural Carrier was
treated more favorably than Complainant after they had a preventable
accident or had issues regarding the quality of their work. Moreover,
although Complainant maintained that she was never counseled about
any performance issues, she acknowledged during the hearing that the
Postmaster had previously talked to her about her performance. We find
that Complainant has simply not shown that the record lacks substantial
evidence to support the AJ’s finding of no discrimination.
CONCLUSION
Based on a thorough review of the record, we find that there is
substantial evidence in the record to support the AJ’s finding of
no discrimination. 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, 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
__5/26/11________________
Date
1 In O’Connell v. United States Postal Service, EEOC Appeal
No. 0120093558, (February 4, 2010), the Commission found in relevant
part that Complainant was not given sufficient time to respond to the
Agency’s motion for summary judgment and as such, the issuance of a
summary judgment decision was inappropriate. The Commission vacated and
remanded the Agency’s final action and ordered a hearing for this case.
The instant case is the result of that hearing.
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0120102586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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