Helen M. Ciampi, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120071346 (E.E.O.C. May. 25, 2007)

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