0120073993
03-13-2009
Alice J. Shuttleworth, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest area), Agency.
Alice J. Shuttleworth,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest area),
Agency.
Appeal No. 0120073993
Hearing No. 460-2007-00032X
Agency No. 4G-770-0254-06
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 22, 2007 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 appeal is deemed timely and is accepted
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 Part-Time Regular Mail Processing Clerk at the North Shepherd
Station in Houston, Texas. On July 19, 2006, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
race (Caucasian), color (white), and reprisal for prior protected EEO
activity1 [arising under Title VII], when, on May 31, 2006, she was
issued a seven day suspension for Improper Conduct/ Failure to Follow
Instructions/Violation of the Zero Tolerance Policy for an incident
which occurred on April 21, 2006.
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 and the AJ held a hearing on August 2, 2006 and
issued a decision on August 16, 2007.
The AJ found that complainant established a prima facie case of race
and color discrimination. Specifically, she found that complainant
established that she was treated differently than similarly situated
individuals outside of her protected class. The other person involved
in the altercation who is of a different race and color than complainant
was not similarly disciplined. The AJ found however, that complainant
failed to establish a prima facie case of retaliation. The AJ found
that complainant's prior EEO activity is too remote in time to establish
a causal connection. Further, the AJ noted that complainant herself
admits that her retaliation clam is based on her union grievance activity
and not her prior EEO activity. The AJ also found that the alleged
responsible management official had no knowledge of the complainant's
prior EEO activity.
The AJ then found as follows: complainant's co-worker (C1) testified that
she and complainant had a "spat back and forth" with raised voices over a
piece of mail on April 21, 2006, but C1 stated that she did not believe
this was a big deal. C1 did not receive any discipline following this
incident and did not know until this case that complainant had received
discipline. On examination by complainant, C1 admitted that complainant
never confronted her or brought any mail to her. The Supervisor,
Customer Service (S1) issued the discipline at issue in this case.
S1 admitted that he did not witness the April 21, 2006 incident. However,
he testified that a 204(b) supervisor approached him and asked what was
wrong with his clerk. S1 testified that he spoke with complainant, who
admitted using profanity. S1 stated that he also obtained a statement
from C1. S1 stated that after his investigation he made a decision based
on complainant's history on the workroom floor to issue discipline to her
because he considered her the aggressor. Specifically, he testified that
complainant had confronted carriers about mail before and had been told
by him and other managers not to do so. S1 stated that he now knows
that complainant took the mail to a supervisor, and did not in fact,
confront a carrier. He testified that C1 was not put off the clock since
complainant was taking two weeks of annual leave so there was a natural
separation of the parties to this dispute. The AJ found that based on
the above, the agency has articulated a legitimate, nondiscriminatory
reason for its actions. The AJ concluded that complainant did not meet
her burden of establishing by a preponderance of the evidence, that
the agency's reasons are pretextual. 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 her representative of record was
not able to attend the hearing, and that the AJ ought to have allowed
the hearing to be rescheduled. In addition, complainant contends that
the AJ came to the wrong conclusion, given that two employees were
involved in a confrontation and were not equally subjected to the zero
tolerance policy and were not treated equally in the discipline process.
Complainant also points out that management was of the same racial group
as C1, and different from herself.
In reply, the agency indicates that both the AJ and the agency's
representative traveled to Houston for the hearing as scheduled on August
2, 2007. Complainant's designated representative did not appear as he
instead attended a union convention. He had not previously notified
either the AJ or the agency representative of his scheduling conflict.
Complainant appeared with a technical advisor. Over complainant's
objections, the AJ decided to continue with the hearing, noting that
she had not been given written or verbal notice that the representative
was unable to attend. The agency argues that the AJ was within her
discretion in deciding not to postpone the hearing. The agency asserts
that a complainant is always responsible for proceeding with the complaint
regardless of whether they are represented; and once a complainant has
been selected, the complainant is then responsible for the actions or
inactions of that representative.
Initially, we note that under these circumstances, we discern no abuse of
discretion on the part of the AJ in determining that the hearing should
proceed. Administrative Judges have broad discretion in the conduct of
hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000).
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, � VI.B. (November 9, 1999).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, the AJ's determination that S1 was most likely not motivated
by discrimination or retaliation at the time he acted, is supported by
substantial evidence in the record. Based on a thorough review of the
record and the contentions on appeal, including those not specifically
addressed herein, we AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 13, 2009
Date
1 The record indicates that this activity occurred in or about June,
2000.
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0120073993
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073993