0120091313
08-19-2009
Iris E. Calloway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Iris E. Calloway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091313
Agency No. 4K200008508
DECISION
On January 30, 2009, complainant filed an appeal from the agency's final
decision 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 timely1 and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At all times relevant to this complaint, complainant was in her
probationary period and worked as a Transitional City Carrier at the
Hyattsville, Maryland Post Office.
On May 13, 2008, complainant was given a pre-disciplinary interview by
her supervisor for incidents alleged to have occurred on May 12, 2008.
Specifically, complainant was accused of the intentional delay of
certified mail, falsification of delivery records, failure to follow
instructions by failing to call when not returning by 6:00 pm, and
bringing back parcels for two days as "not attempted" and "undeliverable."
Complainant stated that she returned with the packages because she was on
a new, longer route with many similar street names, and it was difficult
for her to find the correct streets for delivery. Complainant further
alleged that she had been instructed to return before night-fall for
safety reasons, which she did.
On May 19, 2008, complainant met with her supervisor and her manager
to discuss the incidents on May 12, 2008, and her reassignment to the
Calvert Annex. Complainant asserts that the manager became agitated and
aggressive, intimidated her, and used obscene language that ultimately
made her cry. Complainant asserts that the manager then shouted at the
top of his voice that she was terminated, that she should turn in her
badge and leave the facility immediately, and that she should not come
back to pick up her check. The manager and supervisor assert that the
manager only threatened to terminate her if she failed to follow his
instructions, and that complainant responded that he could not fire her
because she was resigning. Additionally, both the manager and supervisor
deny that the manager raised his voice or used obscene language.
That same day, complainant received a phone call from her union
representative who told her that she was not fired and that her job
was still hers. Additionally, her supervisor called her and told her
that she should report to work at the Calvert Annex and should begin her
assignment there on May 30, 2008. Complainant failed to report to work
on May 30, 2008.
On June 4, 2008, complainant received a Letter of Separation from her
supervisor, effective May 30, 2008, for failure to report to work as
scheduled on May 30, 2008. In a letter dated June 6, 2008, complainant
stated that she was aware that she was advised to return to work, but
she had concerns about the work environment and her supervisors.
On May 13, 2008, complainant filed a formal EEO complaint of
discrimination on the bases of race (Hispanic2), sex (female), national
origin (Hispanic), and in reprisal for prior protected EEO activity when:
1. On February 29, 2008, her manager hollered at her and slammed his
fist on his desk; and
2. On May 19, 2008, her manager used aggressive, intimidating, and obscene
language toward her, then verbally terminated her and told her to leave
the facility.
On May 27, 2008, the agency dismissed complainant's claim 1 for failure
to state a claim. Specifically, the agency found that complainant
failed to establish that she suffered a harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
Complainant's remaining claim was investigated, and 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). In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged. Complainant now appeals that
decision to the Commission.
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").
Dismissal
The regulation set forth in 29 C.F.R. � 1614.107(a)(1) provides that
an agency shall dismiss a complaint that fails to state a claim.
Moreover, the agency shall accept a complaint from any aggrieved
employee or applicant who believes that he or she has been discriminated
against because of race, color, religion, sex, national origin, age, or
disability. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal
sector case precedent has long defined an aggrieved employee as one who
suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
the United States Supreme Court has ruled that an aggrieved employee
is one who has suffered a loss with respect to a term, condition, or
privilege of employment. Trafficante v. Metropolitan Life Insurance,
Co., 409 U.S. 205 (1972). The Commission finds that complainant failed
to establish that the manager's alleged hollering and slamming his fist
on his desk created a loss or altered a term, condition, or privilege
of employment. Therefore, we affirm the dismissal of claim 1.
Disparate Treatment
Complainant alleges that she was disparately treated when her manager
used aggressive, intimidating, and obscene language toward her, then
verbally terminated her and told her to leave the facility. To prevail
in a disparate treatment claim such as this, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in
this case, however, because the agency has articulated legitimate and
non-discriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995). Here, we will assume
without so finding that complainant established her prima facie cases
of discrimination.
The agency must now articulate a legitimate, non-discriminatory reason
for its actions. The agency asserts that complainant was not fired
during the meeting on May 19, 2008, but was fired for failure to report
to work on May 30, 2008. Further, both the manager and the supervisor
deny complainant's allegations that the manager yelled at her, intimated
her, or used obscene language.
Complainant must now establish that the agency's legitimate,
non-discriminatory reasons are pretext for discrimination. The record
supports the agency's assertion that complainant was not terminated until
she failed to report to work on her scheduled day. This termination is
in line with agency policy, as evidenced by a Memorandum of Understanding
between the agency and the union, which states that transitional employees
may be separated at any time for just cause, and that transitional
employees are expected to maintain their assigned schedules and must make
every effort to avoid unscheduled absences. While there are conflicting
accounts between complainant and management officials regarding the
events that transpired on May 19, 2008, the record does not establish
that discriminatory or retaliatory animus more likely than not played a
role in the agency's actions, nor is there a dispute that complainant did
not report to duty as directed on May 30, 2008. Therefore, we find that
complainant failed to establish that the agency's articulated legitimate,
non-discriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision because a preponderance of the evidence of record does
not establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 19, 2009
Date
1 We note that the agency failed to establish the date that complainant's
attorney received the agency's final decision, and as such, we deem this
appeal timely. See 29 C.F.R. � 1614.402(b).
2 We note that under the laws enforced by the Commission, the term
"Hispanic" denotes only a national origin.
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0120091313
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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