0120093261
08-19-2011
Ruth R. Irving, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Ruth R. Irving,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120093261
Hearing No. 532-2007-00169X
Agency No. 1C-452-0012-07
DECISION
Complainant timely filed an appeal from the Agency’s June 30, 2009,
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).
For the following reasons, the Commission AFFIRMS the Agency’s final
order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports
the EEOC Administrative Judge's (AJ) decision that Complainant failed to
demonstrate that the Agency discriminated against her based on reprisal
when she was placed on administrative leave.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Manager, EAS-20, at the Agency’s Bulk Mail Center (BMC) in
Cincinnati, Ohio. On October 26, 2006, the BMC Plant Manager (PM) heard
reports that Complainant and a male coworker (MC) were involved with a
business called Jarrett Power Washing (JPW). Hr’g Tr. 406-408. MC was
the acting supervisor of the Agency’s transportation division and was
directly supervised by Complainant. Id. at 90. PM received reports that
JPW was excessively power washing trailers rented by the Agency. Id. at
442-43. As a result, PM contacted the Office of Inspector General (OIG)
to look into the matter. Id. The OIG agent assigned to the matter was told
that Complainant and MC had a possible conflict of interest pertaining
to their relationship with JPW. Id. at 219. After speaking with the PM,
the OIG agent began an investigation. Id. Thereafter, the OIG agent
interviewed a power washer (PW) who had previously been responsible for
the power washing before JPW was granted the task. Id. at 227-28. PW
reportedly told the OIG agent that Complainant was responsible for
stopping his power washing work with the Agency. Id.
On January 9, 2007, the OIG agent interviewed the Complainant. Id. at
232 Therein, Complainant stated that employees informed her that MC was
the boss of JPW, and that JPW was unnecessarily washing trailers. Id. at
235. Although she supervised MC, Complainant admitted that she never
questioned MC about the matter. Id. Later, on January 9, 2007, the OIG
agent interviewed the Agency’s vehicle clerk (VC), who had complained
that JPW was repeatedly washing the same trailers. Id. at 90-91. VC told
the OIG agent that he had been receiving JPW invoices directly from MC,
and was also told that MC was the boss of JPW. Id. at 90-94. Thereafter,
the OIG agent spoke to the PM about the investigation. Id. at 237. The
OIG agent told the PM that he could not definitively answer whether
or not Complainant improperly benefited from an arrangement with
JPW. Id. However, the OIG agent advised the PM that Complainant’s
conduct seemed unusual and suspicious. Id. at 240-41. The OIG agent also
told the PM that Complainant seemed evasive in responding to questions
during the investigation. Id. at 238. The OIG agent further told the
PM that he would subpoena bank records to see if Complainant improperly
benefited from a relationship with JPW. Id. The OIG agent had received
reports that Complainant had improperly received a transmission for her
car and a cruise from JPW. Id. at 209.
Thereafter, beginning on January 9, 2007, while waiting for the bank
records, the PM placed Complainant on paid administrative leave. In
March 2007, the PM received the necessary bank records revealing that
Complainant had no financial link and had not improperly benefited from
a relationship with JPW.1
On April 6, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her based on reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when she was
placed on administrative leave on January 9, 2007.2 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 AJ. Complainant timely requested a hearing, which the AJ held
on October 7 and 8, 2008. Thereafter, the AJ issued a decision in favor
of the Agency on June 8, 2009. 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.
The AJ noted that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the AJ noted that the PM received
a report from the OIG agent that Complainant had a possible conflict of
interest pertaining to her relationship with JPW and MC. The AJ further
noted that the PM believed that relieving Complainant of her duties
during the investigation would protect the interests of the Agency. The
AJ noted that Complainant was placed on administrative leave while
the PM was waiting for bank records to determine if Complainant had
improperly benefited from JPW’s relationship with the Agency. The AJ
noted that although no improper relationship was found, the PM acted
appropriately based on the OIG agent’s information. Lastly, the AJ
noted that Complainant failed to establish that the Agency’s legitimate,
nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she engaged in EEO protected
activity when she testified on behalf of MC with respect to his EEO
complaint. Complainant also contends that she was improperly placed
on administrative leave despite the fact that there was no evidence
that she engaged in any unethical conduct. Complainant contends that
on January 29, 2007, the OIG agent indicated via e-mail that he was
considering dropping the investigation against Complainant with the
remaining focus on MC. Complainant contends that by January 29, 2007,
all the investigative interviews were complete and management’s reason
for keeping her on administrative leave was no longer valid. Complainant
contends that on January 15, 2007, she was forced to attend a hostile
interview with the PM, the Agency’s attorney, and the Agency’s labor
specialist, which had no purpose. Complainant contends the Agency was
attempting to “pin” improper allegations on her, and it was obvious
that she had done nothing unethical.
ANALYSIS AND FINDINGS
Standard of Review
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 for 29 C.F.R. Part 1614, Chap. 9, at §�
�VI.B. (Nov. 9, 1999).
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with
in this case, however, because the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that substantial evidence in the record supports
the AJ's decision. Assuming, arguendo, that Complainant established
a prima facie case of discrimination based on reprisal, we find that
the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the PM explained that it was his decision to
place Complainant on administrative leave on January 9, 2007. The
PM explained that he spoke to the OIG agent on January 9, 2007, who
indicated that Complainant may have improperly benefited from the
Agency’s relationship with JPW and that the investigation was still
ongoing. Report of Investigation (ROI), at 5; Hr’g Tr., at. 416,
432-33. PM explained that the OIG agent recommended that Complainant be
placed on leave until the investigation was complete. Id.
Complainant now bears the burden of proving by a preponderance of
the evidence that the Agency’s articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the Agency’s proffered explanation is unworthy of credence. Burdine,
450 U.S. at 256. In attempt to show pretext, Complainant contends that
there was no evidence that she had engaged in any improper unethical
conduct. Complainant further contends that on January 29, 2007, the OIG
agent indicated that he was considering dropping the investigation against
her. Notwithstanding Complainant’s contentions, the record reflects
that on January 9, 2007, the OIG agent told PM that the investigation
against Complainant was not complete. Hr’g Tr. at 241. The record also
reflects that on January 9, 2007, the OIG agent told the PM that he
wanted to examine bank records to determine if Complainant improperly
benefited from a relationship with JPW. Id. at 246-47. We note that
OIG agent told the PM that he received reports that Complainant had
improperly received a cruise and other benefits from JPW. Id. at 247. We
also note that the bank records were not received until March 2007. Id. at
213. Although the bank records revealed that Complainant was not involved
in any unethical conduct, there is no dispute that the OIG agent received
reports that Complainant had possibly acted improperly. Therefore, based
on the above, we agree with the AJ that Complainant failed to establish
that the Agency’s legitimate, nondiscriminatory reasons were pretext
for discrimination.
Accordingly, we find that substantial evidence in the record supports
the AJ's decision that Complainant has not proven that the Agency's
articulated reason for placing her on administrative leave was pretext
for discrimination based on reprisal.
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 order adopting the AJ’s 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 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 19, 2011
Date
Date
1 On April 23, 2007, Complainant was taken off administrative leave and
returned to work.
2 Complainant alleges that she engaged in prior protected activity
when she testified in November 2006 on behalf of MC in regards to his
EEO complaint.
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0120093261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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