0120130931
05-14-2013
Gloria D. McCombs, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Gloria D. McCombs,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120130931
Hearing No. 520-201-00472X
Agency No. 1Y-520-0040-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 28, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Manager Distribution Operations (MDO), EAS-24, at the New York International Service Center, John Fitzgerald Kennedy Airport Building #250 in Jamaica, New York.
On June 11, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American) and in reprisal for prior protected activity when:
on January 19, 2011, she was notified she was being reassigned from Tour 2 to Tour 3.
Following a hearing held on March 14, 2012, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not establish a prima facie case of race and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ noted that on January 30, 2008, the Plant Manager set a letter to Complainant regarding Change of Assignment reassigning Complainant to Tour 3 with her schedule as 5:00 p.m. to 1:30 a.m. "until further notice" because of her involvement in a situation that was "negatively impacting" Tour 2. The AJ noted that before the 2008 reassignment, Complainant worked on Tour 2 and had a conflict with a named employee which was having a negative impact upon Tour 2. Complainant continued to work on Tour 3 from 2008 to 2011, without having earlier filed an EEO formal complaint based on the 2008 reassignment.
The AJ further noted that in a memorandum dated January 18, 2011, the Plant Manager indicated the Manager Distribution Operations tour schedule included newly reassigned tour duties. The record reflects that the 2011 Reassignment released by the Plant Manager was circulated to all Manager Distribution Operations, including Complainant. On or around January 19, 2011, Complainant sent a letter to the union regarding the 2011 Reassignment requesting to continue working her current Tour 3 schedule which is Tour 3 from 5:00 p.m. to 1:30 a.m. and a "stay" on her Tour 2 assignment of 7:00 a.m. to 3:30 p.m.
The AJ determined that Complainant's January 2011 reassignment to Tour 3 did not amount to an adverse personnel action because she was already on Tour 3 prior to the notice. With respect to Complainant's assertion that the 2011 Reassignment was an "official" act of reassignment, the AJ determined that Complainant's argument was not persuasive, as the 2008 reassignment was not temporary. Specifically, the AJ noted that the text of the 2008 Reassignment notice "states the Complainant 'will be assigned to Tour 3 until further notice.' It does not state that the change is temporary but rather it was a change of assignment."
The AJ noted that according to Section 716.12 (f) "Temporary Assignments to Nonbargaining Positions" of Handbook EL-312, it states "temporary assignment of an employee to a position at the same or lower level should not exceed 90 calendar days unless extended by the next higher level of management above the appointing official." The AJ determined that since Complainant was in her position for three years, the reassignment could not have been a temporary switch.
Furthermore, the AJ determined that because "the Complainant was already on Tour 3 prior to the 2011 Reassignment notice, the changes in the 2011 Reassignment did not affect her. Therefore, Complainant suffered no personnel action, adverse or not, in relation to that notice of reassignment."
With respect to Complainant's 2008 Reassignment, the AJ determined that Complainant did not file the instant formal complaint until June 2011 which was approximately over three years later, and that she was therefore time-barred from presently litigating this matter. The AJ further determined that even Complainant's 2008 Reassignment claim was timely raised, Complainant did not establish a prima facie case of race and reprisal discrimination. The AJ found that the Agency articulated legitimate, nondiscrimination reasons for its actions which Complainant failed to show a pretext. Specifically, the AJ found that the record reflects that there was a conflict between Tour 2 lead and Complainant, and as a result, the Plant Manager to reassign Complainant to Tour 3 in order to best promote efficient operation of the Agency.
Complainant, on appeal argues that the AJ erred finding no discrimination. For instance, Complainant argues that while the Plant Manager has "the responsibility to effectively deploy the workforce, but does not have sweeping managerial powers and prerogatives to assign MDO's to tours that would best promote the efficient operation of the Agency WITHOUT the following criteria procedures, rules and regulations that are established and required in making such a change. NOT ON A WHIM, AS HE HAS DONE [emphasis in its original]!"
The instant appeal followed.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, 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 Agency's final action 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.1
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
May 14, 2013
__________________
Date
1 On appeal, Complainant does not challenge the June 27, 2011 partial dismissal issued by the Agency regarding one other claim (that she was discriminated against on the bases of race and in reprisal for prior EEO activity when on an unspecified date, she received notice that others were paid when she was denied 16 hours of Administrative Leave on March 2, 2009, December 20, 2009, February 11, 2010, and December 26, 2010). Therefore, we have not addressed this issue in our decision
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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