0120070007
03-21-2008
Wanda D. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Wanda D. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 01200700071
Hearing No. 430-2006-00119X
Agency No. 1K-231-0015-06
DECISION
On September 27, 2006, complainant filed an appeal from the agency's
August 30, 2006, 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the
Commission's de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Mail Handler, PS- 04 at the Richmond Post Office, in Richmond, Virginia.
On January 4, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), disability (sprained back), age (D.O.B. 07/01/58), and
in reprisal for prior protected EEO activity [arising under Title VII]
when:
(1) On October 22, 2005, she was put in Emergency Placement in Off-Duty
Status Without Pay because of her alleged "unacceptable conduct and
threatening behavior toward a postal manager"; and
(2) On November 2, 2005, she was issued a Notice of Removal which was
subsequently reduced to a 14-day suspension based on alleged "Improper
Conduct/Creating and Environment Conducive to Violence".
At the conclusion of the investigation, complainant was provided 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. Over complainant's objections, the AJ assigned to
the case granted the agency's July 25, 2006 motion for a decision without
a hearing and issued a decision without a hearing on August 29, 2006.
The AJ found as follows: the record reflects that complainant admitted
that she refused to leave the building when instructed to do so by a
Manager (Black, female, DOB: 9/8/53). While complainant maintained
that she was treated less favorably than similarly situated employees,
complainant pointed to no employee outside her protected groups who
ignored repeated instructions to leave the building. Further, viewing the
evidence in a light most favorable to complainant, complainant failed to
present any evidence from which a reasonable fact-finder could conclude
that the agency's decisions to place her in an off-duty status and to
issue her a Notice of Removal were motivated by discriminatory animus
based on her race, sex, age, disability or her prior EEO activity.
The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. On appeal, complainant contends that a hearing was warranted
in this case. She also states "Maybe the initial act that lead up to
the incident was not discrimination but the different treatment of the
emergency placement, Notice of Removal and the 14 Day Suspension, I was
discriminated against because of the race, retaliation, age and sex and
placed in a hostile work environment." She additionally points out that
after the grievance, her Manager changed her statement and submitted a
second statement, which suggests that she was lying. The agency requests
that we affirm the final order.
The allocation of burdens and order of presentation of proof in a
Title VII, ADEA or Rehabilitation Act case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Assuming complainant could establish a prima facie case of discrimination
on the alleged bases, the agency has set forth legitimate,
nondiscriminatory reasons for its actions. Although complainant
clearly perceives the events that led to her discipline differently than
management, complainant has still not presented any persuasive evidence
that management's explanations are more likely than not, pretexts for
discriminatory or retaliatory animus. After a careful review of the
record, the Commission finds that the AJ's decision without a hearing was
appropriate, as no genuine issue of material fact is in dispute.2 See
Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Therefore, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 21, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120070007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036