0120072836
01-12-2010
Lynda Paige, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Lynda Paige,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120072836
Agency No. 1A102004506
DECISION
Complainant filed an appeal from the agency's May 1, 2007 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.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American) and in reprisal for prior protected
EEO activity under Title VII when: (1) she was harassed with respect
to working conditions, leave, and pay, and verbally abused starting in
July 2006. She filed an amendment to the complaint on November 10, 2006,
alleging that she was further harassed by supervisors and managers on the
basis of race (African-American), gender (female), and EEO activity, when:
(2) she was verbally abused on November 9, 2006, and put in an Emergency
Placement, Non-Duty status (suspended) on November 10, 2006.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
BACKGROUND
At all relevant times, complainant worked as an Express Mail Clerk at the
agency's Morgan Processing and Distribution Center facility in New York,
New York. She alleged that after she complained to the Acting Senior
Manager (SM) (race not reported, male, no prior EEO activity reported)
about poor treatment by a Manager of Distribution Operations (MDO), MDO's
conduct intensified and in July he required her to produce documentation
for family medical leave or sick leave, changed her leave to annual leave
and leave without pay, and made derogatory comments to her-all because of
her race and her prior EEO activity. Additionally, complainant alleged
that after initiating the EEO process in October 2006 because of the
foregoing treatment, MDO seized on a false complaint from a coworker (CW)
and suspended her because of her race, gender, and the EEO activity.
The record reveals that MDO confronted complainant on November 9,
2006, after being informed by CW, for the second time in 8 days, that
complainant had cursed at CW. CW reported that complainant yelled "hit
me" at him during a verbal exchange-something she said to MDO two months
earlier. MDO instructed complainant to leave her work area and follow
him and to turn in her agency identification badge and keys. Complainant
refused to follow MDO's instructions. MDO2 also asked complainant to hand
over her identification badge and keys and complainant again refused.
MDO called postal police for assistance. The agency issued complainant
a suspension on November 9, 2006, for disobeying a direct order and
disrupting agency operations. Complainant resumed her duties after
being interviewed and cleared by a work intervention counselor.
In the final agency decision, the agency found that complainant failed
to establish that a pervasive atmosphere of racial discrimination
or reprisal existed, and therefore, that she did not prove harassment.
The agency also found that she did not establish a prima facie case of
race or reprisal discrimination with respect to the treatment accorded her
after July 6, and that even assuming that she met this initial burden,
the agency articulated nondiscriminatory reasons for its actions which
she failed to rebut. Similarly, it found that complainant failed to
establish a prima facie case of race and gender discrimination with
respect to her suspension. Finally, the agency found that even though
she did establish a prima facie case of reprisal discrimination regarding
her suspension, the agency articulated a nondiscriminatory reason for
suspending her which she did not rebut.
CONTENTIONS ON APPEAL
In connection with the November 10, 2006 suspension, complainant
challenges the MDO's credibility, and questions how he could believe CW
(Caucasian, male, no prior EEO activity reported), when CW perpetually
smelled of alcohol and was himself belligerent. Complainant cites written
statements from two other coworkers who recounted that MDO was agitated
when he approached complainant as she was closing her work station; he
was inexplicably disrespectful to her and began yelling for her to come
with him; she declined and asked that a union representative and/or the
agency police be summoned; MDO then directed complainant to give him
her postal identification and building key; and she refused and left
the immediate area.
DISCUSSION
Despite complainant's arguments to the contrary, the Commission finds that
the final agency decision was proper. Regarding issue 1, MDO explained
that complainant had a poor attendance record and was under a "document
deemed desirable" status and that her leave and pay for the pay period
in issue were adjusted when she brought in sufficient documentation.
MDO also explained that he denied complainant's request for a day off
on November 9, 2006, because of staffing needs and denied making the
derogatory comments attributed to him by complainant. Complainant failed
to refute these explanations. She does not contest the assessment of her
attendance record as poor or contend that her leave and pay ultimately
were not adjusted, and she does not provide any corroboration to buttress
her allegation that MDO made disparaging remarks. Upon review, we find
complainant failed to show that the agency's articulated reasons for
its actions were a pretext for discrimination or reprisal.
With respect to issue 2, complainant similarly failed to show by a
preponderance of evidence that race, sex, or reprisal discrimination
played a role in the agency's decision to suspend her. MDO averred
that he suspended six individuals for safety reasons--four black males,
a black female, and a Hispanic male. Assuming arguendo that complainant
established a prima facie case of discrimination and reprisal with regard
to issue 2, we find she failed to refute the agency's articulated reason
for her suspension: that MDO perceived her to be a danger to coworkers and
to MDO and that she refused to leave her work area and refused to turn in
her identification badge and keys as instructed. None of complainant's
coworkers corroborated her assertions that she did not curse at CW or
tell him to hit her, and none of them corroborated her assertions that
CW and MDO were unworthy of belief. In the absence of evidence that
the agency's explanations for the suspension were false or a pretext,
the Commission affirms the agency's final decision.
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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 tends 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
January 12, 2010
__________________
Date
2
0120072836
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072836