0120123426
02-13-2013
Pamela F. Hamiel, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Pamela F. Hamiel,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120123426
Agency No. 4C-190-0011-12
DECISION
Complainant filed an appeal from the Agency's final decision, dated July 27, 2012, 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 Letter Carrier at the Agency's Mail Delivery Unit, Mail Post Office facility, in Philadelphia, Pennsylvania.
On October 26, 2011, Complainant contacted an EEO Counselor. On February 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On October 26, 2011, her case was moved and she was observed, questioned about her performance, followed, and put on emergency placement;
2. On November 8 and 23, 2011, management observed her case and pull down her route;
3. On November 11, 2011, she was issued a Notice of Removal;
4. On December 8, 2011, her supervisor denied her request for two hours overtime;
5. On December 9, 2011 she was sent home and remained out of work;1
6. On an unspecified date, her supervisor made false accusations against her and on January 6, 2012, her supervisor scheduled her for a Pre-Disciplinary Interview; and
7. On an unspecified date, she was told not to use a rest bar.
The record shows that the claims were accepted for investigation on February 13, 2012. With regard to the retaliation claim, the evidence gathered during the investigation showed that the named responsible officials for claims 1, 3 and 4 were not aware of Complainant's prior EEO activity. Those who were aware were not involved in the subject decisions, including the decision to send Complainant home on December 9, 2011.
The record shows that Complainant's case was moved and she was questioned about her job performance. Management observed her perform her functions. She was issued a Notice of Removal that was also the subject of a National Labor Relations Board action.
Further, with regard to claim four (overtime), the record shows that Complainant requested two hours assistance on her route, which was approved. Complainant was then informed that the overtime for her route was being assigned to another carrier. Complainant maintains that the overtime should not have been given to another employee since she was available to work the overtime and that she should have been permitted to work on her own route. The record shows that Complainant had more overtime then the persons with whom she compared herself. In addition, the Agency policy requires supervisor to make efforts to prevent employees from going into a penalty overtime situation.
The record shows that Complainant was placed on administrative leave based on Complainant's lewd and obscene gestures toward the Supervisor, Customer Service. Complainant was instructed to clock out. Instead, Complainant told the manager that she should clock her out. The record documents that at some point, Complainant made gestures and expelled gas on the managers, then turned around and gave them the "finger" as she exited the building. This incident was the topic of the January 6, 2012 pre-disciplinary interview.
The record shows that, within the unit where Complainant worked, employees were allowed to use a rest bar when they were writing up their accountable items or after there was documentation on file that a rest bar was needed for casing mail.
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. Specifically, the Agency found that Complainant failed to establish her prima facie case because she did not identify similarly situated comparators who were treated more favorably than Complainant.
The Agency then reasoned that, assuming Complainant established her prima facie claims, the Agency articulated legitimate non-discriminatory reasons for each of its actions. The Agency put forth evidence that other employees had their performance observed, critiqued, were placed off the clock, closely tracked, limited in terms of overtime and issued notices of removal for improper conduct and behavior. The evidence showed that those outside of Complainant's protected groups had been submitted to the same practices. The Agency concluded that Complainant had not shown those reasons to be a pretext for discrimination.
The instant appeal followed.
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").
Further, the Commission has the discretion to review only those issues specifically raised in an appeal. See Mannon v.United States Postal Service (Western Area), EEOC Appeal No. 0720070074 (April 4, 2012), citing EEOC Management Directive 110. In this case, Complainant did not provide a brief in support of her appeal. She wrote in a statement that she was not apprised that she had 30 days to appeal the impending decision filed on February 2, 2012. Our review of the record shows that Complainant timely filed her appeal from the decision which was entered on July 27, 2012. Accordingly, we will treat this matter on the merits, based on the record. Our review pertains only to the issues before us on this appeal.
To ultimately prevail in her disparate treatment claim, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of race discrimination or retaliation. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The Agency correctly found that Complainant did not establish a prima facie case of discrimination. Complainant was treated in the same manner as the other employees, including those not of her protected groups. Others were observed, disciplined, limited in overtime and issued notices of proposed removal.
Similarly, Complainant must establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of retaliatory animus. See Watkins v. United States Postal Service, EEOC Appeal No. 0120092749 (June 29, 2012). Specifically, in a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
There is no evidence that the responsible management officials were aware of Complainant's EEO activity at the time they took the disputed actions.
Moreover, there is no evidence that would show that the Agency's stated reasons were a pretext for unlawful discrimination or retaliation. After careful review of the record, we find that the record supports the Agency's finding of no unlawful retaliation. We AFFIRM the final decision.
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
February 13, 2013
__________________
Date
1 We note that Complainant's hostile environment and removal claim is the subject of a separate EEOC appeal, Pamela Hamiel v. USPS, EEOC Appeal 0120120653 (April 5, 2012).
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0120123426
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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