0120121716
08-15-2012
Madeline L. Bauccio, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Madeline L. Bauccio,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120121716
Agency No. 4B117005711
DECISION
On March 1, 2012, Complainant filed an appeal from the Agency's January 31, 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 Sales, Services/Distribution Clerk at the Agency's Hicksville facility in Hicksville, New York.
On August 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (White), disability, and age (50) when:
1. on April 13, 2011, Complainant was put on Emergency Placement Off-Duty Status without pay and
2. On May 25, 2011, Complainant was issued a Notice of Removal which was ultimately reduced to a 32-Day Time Served Suspension pursuant to an agreement reached through the Agency's grievance process.
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 record in this matter indicates that the Agency's Office of the Inspector General conducted an investigation from November 25, 2009 through April 14, 2011, which focused on the possibility of the embezzlement of funds by a Sales and Services Associate who was a co-worker of Complainant's. As a result of the OIG investigation, the Agency learned that Complainant failed to enter information for seven customer transactions into her point of service terminal between the period of February 25, 2010 and February 4, 2011. The record further indicates that during an interview with an OIG Special Agent, Complainant admitted that she accidentally failed to make the referenced point of sale entries. Following this interview, Complainant's supervisor served Complainant was a Notice of Emergency Placement as described in claim 1 above. Thereafter, the record discloses that Complainant was issued a Notice of Removal on May 25, 2011.1 The Notice of Removal specified that Complainant was charged with failing to properly report customer retail transactions, which contributed to the Agency's Segmented Inventory Accountability (SIA) shortages. The Notice of Removal referenced Complainant's admission that she failed to properly enter the customer transactions as well as her emergency placement in April 2011. The Notice of Removal also detailed several provisions of Agency policy Complainant's actions violated.
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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race and sex by demonstrating that (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). 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. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case on any alleged, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives. Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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
August 15, 2012
__________________
Date
1 The record indicates that pursuant to a grievance settlement between the parties, Complainant's Notice of Removal was reduced to a 32-Day Time Served Suspension.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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