0120071346
05-25-2007
Helen M. Ciampi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helen M. Ciampi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071346
Agency No. 4A117008505
DECISION
On January 16, 2007, complainant filed an appeal from the agency's August
21, 2006, final decision1 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant was discriminated against based on retaliation
(prior EEO activity), when on September 7, 2005, she was issued a Notice
of Removal, which on December 29, 2005, was unilaterally modified to a
time served suspension.2
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Full-time Distribution Window Clerk at the agency's Glenwood Landing
Post Office facility in New York. The record reveals that complainant was
suspended from work on August 22, 2005, for allegedly assaulting a clerk.
An investigative memorandum indicated that complainant hit a coworker
with a flat bucket on the hip and then pushed the flat bucket into
the coworker two or three times. Complainant denied these allegations.
Nevertheless, a Notice of Removal was issued. It charged the complainant
with: (1) failure to work in a safe manner, when on August 22, 2005,
she struck a coworker with a bucket of flat sized mail; (2) incomplete
mail disposition, when on August 25, 2005, the Postmaster noticed mail in
the complainant's draw that belonged to a customer;3 and (3) failure to
perform the duties of her position, when, in view of her past performance,
complainant demonstrated a belligerent and argumentative behavior when
given the simplest of instructions, and was instructed to replace empty
mail buckets each time the mail drop area was collected but failed to
do so. Other incidents of complainant's failure to perform specific
duties of her position were also cited. Additionally, it was noted
that complainant failed to provide any information that indicated that
disciplinary action should not be taken. Complainant indicated that, in
13 years that she had been an employee, she had never been disciplined.
On February 6, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of reprisal.
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) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
The FAD indicated that complainant failed to establish a prima facie
case of discrimination based on reprisal because the record showed that
complainant did not have any prior EEO activity. The FAD then maintained
that, even assuming, complainant had established a prima facie case of
retaliation, the agency had articulated legitimate nondiscriminatory
reasons for its actions. Specifically, that the Notice of Removal was
issued because of complainant's misconduct and violation of agency rules.
The FAD determined that complainant failed to show that the agency's
reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Neither the complainant nor the agency submitted a brief on appeal.
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").
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. Social Security 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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission agrees that complainant failed to establish a prima facie
case of reprisal because she had no prior EEO activity. Notwithstanding,
we find that assuming arguendo that complainant established a prima
facie case of reprisal, her claim would still fail because the agency
articulated a legitimate nondiscriminatory reason for its action,
namely, that the Notice of Removal was issued, among other things,
because complainant allegedly created a hostile and injurious workplace.
We find that complainant has presented no evidence showing that the
agency's reasons were pretext for discrimination. The Commission is
mindful of complainant's contention that the issuing of a Notice of
Removal was too harsh since she had not had any previous discipline.
Nonetheless, we find that the record does not show that any similarly
situated employees were treated more favorably. In fact, the agency's
documentation notes that there is a zero tolerance policy for workplace
violence and there is no evidence that any employee who was accused of
violence was not similarly disciplined.
CONCLUSION
Accordingly, after a review of the record including those not specifically
addressed herein, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final order, because the preponderance
of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 (S0900)
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 (Z1199)
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
____5/25/07_______________
Date
1 Based on a review of the record it appears that complainant sent her
appeal directly to the agency on September 1, 2006.
2 Complainant's original complaint included one additional allegation.
Complainant alleged that on February 27, 2006, her co-worker and manager
conspired against her. This claim was dismissed for failure to state
a claim pursuant to 29 C.F.R. � 1614.107. The Commission agrees that
this claim was properly dismissed since it fails to demonstrate how
complainant was aggrieved.
3 When questioned about this, complainant indicated that the customer had
asked her to hold the mail. Complainant was told that she knew better
than to hold someone's mail in that manner and that it was the mail of
someone who had previously complained about missing mail and mail that
was return.
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0120071346
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071346