0120122142
09-24-2012
Kathleen Rios, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Kathleen Rios,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122142
Agency No. 4G-770-0207-11
DECISION
On April 13, 2012, Complainant filed an appeal from the Agency's March 19, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate assigned to Route 12 as an Auxiliary Route Carrier at the Agency's Post Office facility in Bryan, Texas. The record indicated that Complainant complained to management that her hours were reduced; she was being watched while on the street; she was not given new assignments; and management spoken to her rudely. Following an accident, Complainant was issued a Notice of Removal on May 5, 2011. The Notice was reduced to a time served suspension on July 12, 2011.
Complainant contacted the EEO counselor on May 4, 2011, asserting that she had been subjected to harassment and disparate treatment. On August 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), color (Black), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Beginning May 3, 2011, Complainant was watched on the street; had her hours reduced; not given new assignments; and talked to rudely; and
2. On May 5, 2011, Complainant was issued a Notice of Removal which was reduced to a suspension on July 12, 2011.
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). 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency noted that management had provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were pretext for discrimination. Further, the Agency found that Complainant did not establish that the alleged events constituted a hostile work environment because of her protected bases. Therefore, the Agency concluded that Complainant failed to establish her claims of discrimination and harassment in violation of Title VII and the ADEA.
Complainant appealed. Complainant provided copies of her formal complaint and of management's observation forms from December 2010 through April 2011. Complainant did not provide any specific argument in support of her appeal. The Agency indicated that its arguments for finding no discrimination are found in its final decision.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We note that Complainant alleged that she was treated differently because of her race, age, color, and prior EEO activity when the events in claims (1) and (2) occurred. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim (2), the Postmaster averred that Complainant had two accidents in the past. Then, on April 27, 2011, Complainant was involved with an incident in which a mailbox was knocked to the ground. Complainant contacted the Agency regarding the event. When the matter was investigated by the Agency, the Postmaster found inconsistencies in Complainant's versions of the incident. Complainant had told the Postmaster that she was not aware what happened and that the mailbox just fell off. Then Complainant could not explain how pieces of the mailbox had hit her vehicle. Complainant also had told the Postmaster that the mailbox had been wobbly for some time. However, the Postmaster checked with another carrier and who stated that it was not the case. The Postmaster found that the physical evidence did not match Complainant's version of the events. Based on the Postmaster's investigation and discrepancies in Complainant's version of the events, the Agency issued the Notice of Removal. We find that Complainant has not shown that the Agency's action constituted discrimination based on her race, color, age or prior protected EEO activity.
As for claim (1), the Postmaster and the Supervisor averred that Complainant was not treated differently based on her protected bases. The Postmaster and the Supervisor noted that Complainant was an accident repeater. Therefore, pursuant to Agency policy, Complainant was observed in order to eliminate unsafe practices. Complainant asserted that her work hours were reduced and she was not given new assignments. The Postmaster indicated that Complainant was given assignments when she was needed such as carrying mail to city carriers. Further, the Supervisor stated that Complainant's hours were not reduced and that Complainant's bid was on auxiliary route and was the primary substitute on Route 012. He stated that there were no new assignments to give Rural Carrier Associates like Complainant. Based on our review, we find that Complainant has not shown that the Agency's reasons for its actions were pretext for discrimination. As such, we conclude that Complainant has not established that the Agency's actions constituted disparate treatment.
Complainant also asserted that she was subjected to a hostile work environment. It is well-settled that harassment based on an individual's race, color, age and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race, color, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). As noted above, we found that Complainant failed to show that the events occurred because of her protected bases. Therefore, we determine that Complainant failed to meet element (3) of a claim of harassment.
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 finding no discrimination.
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
September 24, 2012
__________________
Date
2
0120122142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122142