01a40615
07-28-2005
Adelaida Pacheco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adelaida Pacheco v. United States Postal Service
01A40615
July 28, 2005
.
Adelaida Pacheco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40615
Agency No. 4A-088-0010-02
Hearing No. 170-A3-8146X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Rural Letter
Carrier (RLC) at the agency's Englishtown, New Jersey Post Office.
The record reflects that a RLC is responsible for delivering mail in
rural and suburban areas on his/her bid assignment. The record further
reveals that a RLC is responsible for providing and maintaining his/her
own vehicle and furnishing all equipment necessary for safe and prompt
handling of the mail, unless an agency owned/leased vehicle is assigned
for the route.
On October 23, 2001, complainant initiated EEO Counselor contact.
After informal attempts to resolve her concerns were unsuccessful,
complainant filed the instant formal EEO complaint on May 14, 2002.
Therein, complainant claimed that she was subjected to harassment on
the bases of national origin (Hispanic), color (brown), and disability
(orthopedic) when:
(1) on March 10, 2001, her supervisor screamed at her and sent her home;
(2) on March 13, 2001, she was not provided safety equipment;
(3) on July 16, 2001, a co-worker threw a box of parcels at her;
(4) during September 2001, she was not credited with adding cluster
boxes to Rural Route No. 14;
(5) on September 18, 2001, she was told to use a Long Live Vehicle
(LLV) instead of her own personal vehicle;
(6) on September 20, 2001, employees tampered with her automobile
causing her to have an accident;
(7) during October 2001, the Postmaster told her to listen to her
supervisor and not speak; and
(8) on November 1, 2001, after calling in sick due to a motor vehicle
accident, she was told that the Postmaster would be coming to her home
to take her to a Postal medical facility.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, an Agency's Motion for a Decision Without a Hearing.
In its motion, the agency requested that the AJ issue a decision without
a hearing in favor of the agency, finding no discrimination. The agency
argued that complainant failed to establish a prima facie case of
disparate treatment based on national origin and color, as she failed to
identify a similarly situated employee, outside her protected classes,
who was treated more favorably under similar circumstances.
As to complainant's disability claim, the agency argued that
complainant failed to establish a prima facie case of disability
discrimination. Furthermore, the agency argued that assuming arguendo
complainant established that she is an individual with a disability
under the Rehabilitation Act, she failed to establish a prima facie case
of disparate treatment. The agency further argued that complainant
failed to identify any similarly situated employees, outside of
complainant's protected class, who were treated more favorably under
similar circumstances.
The agency also argued that complainant did not establish that she
was subjected to a hostile work environment, because the purported
discriminatory actions did not rise to the level of actionable harassment
under the regulations.
The record reflects that complainant raised additional claims in her
response to the agency's First Set of Interrogatories. Regarding these
additional claims, the agency argued for the AJ to dismiss these claims
because they occurred beyond the 45-day time limit for contacting an EEO
Counselor. Specifically, the agency noted that complainant claimed that
she was discriminated against when in December 1999, she was wrongfully
terminated so that a named carrier would obtain her route; in 2001,
her Department of Labor form CA-7 was delayed and she had not received
workers' compensation payments; and in 2001, she was called "scumbag,"
"Mexican," and "roach" by management and co-workers.
Regarding claim (1), the record reflects that the Supervisor Customer
Service (SCS) and the former Postmaster stated that they had no knowledge
of complainant's supervisor screaming at her, and sending her home.
Regarding claim (2), the record reflects that the SCS stated that during
the relevant time period, he was never informed of an unsafe work
environment. The record further reflects that the former Postmaster
stated that complainant had concerns about labels, and that labels were
not considered safety equipment. The former Postmaster stated that
complainant could have ordered labels for her route from her immediate
supervisor; and that he never told complainant that SCS was the only
person who could order the labels for her.
Regarding claim (3), the record reflects that the former Postmaster
stated that complainant never contacted or complained to him regarding
the co-worker. The former Postmaster further stated "I do not recall
speaking with complainant regarding the alleged July 16, 2001 incident,
and "did not receive any correspondence or complaint from [Complainant]
regarding the alleged incident."
The record further reflects that the SCS stated that he had no
recollection of another employee cursing at complainant or throwing
files at her.
Regarding claim (4), the record reflects that the former Postmaster
stated that in August 2001, complainant bid to another route voluntarily,
and that it was later discovered "by the new carrier that the route had
more deliveries than the original posting." Specifically, the former
Postmaster stated that complainant never informed him "prior to her
bidding off the route of twelve (12) additional boxes to be added to
the route. It was after she bid off the route, and [a named New Carrier]
informed me of these boxes." Furthermore, the former Postmaster stated
that "it was later discovered that [Complainant] failed to report
the stops."
Regarding claim (5), the record reflects that the SCS stated that
a review of the office records showed that complainant used her own
personal vehicle on September 18, 2001. The record further reflects
that the former Postmaster stated that complainant "would never be told
or directed to use another vehicle other than her own." The former
Postmaster further stated that complainant, as a RLC, was being paid to
use her own vehicle. Furthermore, the former Postmaster stated that if
he had instructed complainant to use a LLV instead of her own vehicle,
he would have been in violation of the National Agreement and Handbook
PO-603.
Further, the record reflects that in her deposition, complainant
stated that after she informed a named agency official that she had
a considerable amount of mail and that it would not fit in her car,
he "said leave your vehicle here and take the LLC." Furthermore,
complainant stated "I took the LLV and I left my vehicle in the office."
Regarding claim (6), the record reflects that the SCS stated "I have
never tampered with [Complainant] or any other employee's vehicle." The
record further reflects that the former Postmaster stated that during an
interview conducted on September 21, 2001, the day after her automobile
accident, complainant failed to mention any alleged tampering to
her automobile. The former Postmaster further stated that all of
complainant's responses "noted wet pavement and road conditions and her
own failure to adjust to conditions cause to accident."
Regarding claim (7), the record reflects that the former Postmaster stated
that complainant's claim that he told her to listen to her supervisor
and not to speak was "untrue."
Regarding claim (8), the record reflects that the SCS stated that
when complainant called in to request sick leave, he did not scream at
complainant. The SCS further stated that he asked complainant if she
was requesting sick leave because of the accident, and complainant said
that she was. The SCS stated that he then informed complainant that the
Postmaster would call her when he came in the office; and that if she
could not drive to a postal medical facility, that someone would pick her
up. Furthermore, the SCS stated "our office policy for employees injured
on duty is to seek Medical treatment for them as soon as possible."
The record further reflects that the former Postmaster stated that the
SCS was following procedures concerning complainant's on-the-job injury.
On September 30, 2003, the AJ issued a decision without a hearing, finding
no discrimination. The AJ found that complainant failed to establish a
prima facie case of disparate treatment with regard to claims (1) - (3)
and (5) - (8). The AJ found that complainant established a prima facie
case of disparate treatment with regard to claim (4). The AJ, however,
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination.
With respect to complainant's disability claim, the AJ found that
complainant failed to establish a prima facie case.<1>
With respect to complainant's harassment claim, the AJ concluded
that complainant failed to prove that she was subjected to harassment
sufficiently severe or pervasive so as to render her work environment
hostile. The AJ further concluded that even assuming complainant proved
that she was subjected to harassment, complainant failed to demonstrate
that the agency's actions were so objectively offensive as to alter the
conditions of her employment.
With respect to the additional claims raised in complainant's Answers
to the Agency's First Set of Interrogatories, the AJ noted that the
claims occurred beyond the 45-day limitation period for contacting an
EEO Counselor. The AJ further determined that because complainant did
not offer an explanation for her untimeliness, he would not consider
the untimely claims in the instant case.
On October 7, 2003, the agency issued a final action implementing the
AJ's decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. 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). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Complainant has not shown
that the agency's articulated reasons were a pretext for discrimination.
Moreover, the Commission determines that complainant failed to establish
that she was subjected to a hostile work environment. We find that
complainant has not shown that the actions alleged were sufficiently
severe or pervasive as to constitute hostile work environment harassment.
Finally, we find that the AJ's disposition of the �additional claims�
discussed above was proper, and we will not disturb the AJ's handling
of these claims.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination is AFFIRMED.
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
July 28, 2005
__________________
Date
1The Commission presumes for the purpose of
analysis only, and without so finding, that complainant is an individual
with a disability.