0120130909
06-04-2013
Mary-Ellen Marley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Mary-Ellen Marley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130909
Hearing No. 530-2010-00226X
Agency No. 4C-080-0096-09
DECISION
Complainant filed an appeal from the Agency's November 21, 2012, final order 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier at the Agency's Sewell Post Office facility in Sewell, New Jersey.
On December 5, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on August 24, 2009, the Postmaster instructed Complainant to clock out and go home;
2. on October 5, 2009, Complainant's supervisor placed her on off-duty status without pay; and
3. on October 20, 2009, she was issued a proposed Notice of Removal.
The record shows that Complainant filed five prior EEO complaints. Two of the three alleged responsible management officials (the supervisor and the Postmaster) acknowledged that they were aware of Complainant's prior EEO activity. The third named official (the second-level manager) testified that he was unaware of Complainant's prior EEO activity at the time of the incidents. The most recent activity closed on March 19, 2009, four months prior to the August 24, 2009 incident. Complainant had a history of disciplinary actions, dating back to 2003.
Claim One
On August 24, 2009, Complainant was sent home after the second-level manager determined that Complainant had acted belligerently toward him. He testified that he felt that Complainant's conduct was inappropriate and causing a disturbance. He told her to clock out and go home. He testified that he was unaware that Complainant had previously filed an EEO complaint. As further background on this incident, Complainant submitted a Form 3996 requesting help on her route, but the manager testified that he did not think the extra assistance was warranted based on the workload. In addition, the record showed that the second-level manager placed his foot on top of a cart while talking with Complainant. Complainant felt offended because she believed that "he was trying to place his crotch in front of [my] face". An argument ensued. Complainant was sent home.
Claim Two
On October 5, 2009, the Postmaster testified that she was sitting in her office when Complainant came in and threw a ragged piece of paper on her desk, then turned around, and walked out. The paper was a request for information. The Postmaster testified that she took the paper to Complainant's supervisor. As the Postmaster was talking to Complainant's supervisor, Complainant approached them, screaming that her supervisor did not need to do anything. Complainant loudly stated to the Postmaster that "You need to do it. You're gonna do it." The Postmaster told her to leave the building. Witnesses confirmed that Complainant and the Postmaster got into a screaming match, after which the Postmaster told Complainant to leave the building (to clock out). Complainant asked her supervisor if she had to leave. The supervisor said "yes." Complainant left, but Complainant came back and again went into the Postmaster's office. The supervisor testified that as a result of Complainant's behavior that day, the supervisor placed Complainant on emergency placement and submitted a request for removal.
Claim Three
On October 20, 2009, Complainant was issued a Notice of Removal for Improper Conduct and Unsatisfactory Job Performance for the conduct on October 5, 2009. The removal was later downgraded to a 30-day suspension Complainant later resigned.
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). Complainant timely requested a hearing and the AJ held a hearing on April 26, 2012 and April 27, 2012.
Complainant testified that she began her career at the Post Office in 1985 and had been recommended for several managerial positions and for officer-in-charge assignments. After Complainant reported the former Postmaster for deliberately curtailing first class mail and false recordkeeping, however, she became known as a whistleblower. Management of the Sewell Post Office launched an attack on her career and character, which created a hostile work environment.
Complainant testified that she was ostracized, scrutinized and her workload reports and time and attendance reports were altered. Her supervisor accused her of being out sick on days when she was working.
Following a hearing, the AJ issued a decision on September 28, 2012. The AJ concluded that Complainant failed to establish that the Agency's actions constituted unlawful retaliation. The AJ stated "most notably, Complainant does not dispute the behavior which forms the basis for the discipline issued to her." The AJ found that Complainant offered no witness testimony or documentation demonstrating retaliatory animus by the managers involved in this matter. The AJ also found that the whistle blower activity was beyond the purview of Title VII.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Section 717 of Title VII specifically requires that all personnel actions affecting federal employees "be made free from any discrimination." A claim of discriminatory disparate treatment may be examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail under this analysis, she must first present facts that, if unexplained, reasonably give rise to an inference of reprisal. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In this case, the AJ concluded that Complainant failed to prove pretext. On appeal, Complainant argues that the record shows managerial abuse and questions the credibility of the witnesses. Complainant disputes that she offered no evidence because she presented the testimony of her daughter as to the negative effect of the work environment on Complainant.
Even assuming for purposes of analysis that Complainant established the elements of her retaliation claims, she did not dispute that she engaged in the conduct that led to the Agency's actions at issue.
We find that the AJ's findings are supported by the record and there is no reason to disturb the final action.
CONCLUSION
Accordingly, we AFFIRM the Agency's final action.
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 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), 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
June 4, 2013
__________________
Date
2
0120130909
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130909