0120080377
09-22-2009
Angela L. Bajoie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angela L. Bajoie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080377
Agency No. 4G-700-0109-05
Hearing No. 461-2006-00001X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 17, 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. Complainant alleged
that the agency discriminated against her on the bases of sex (female)
and reprisal for prior protected EEO activity when:
1. On April 20, 2005, Route 1407 was removed from her route; and
2. On July 26, 2005, she was subjected to reprisal when she was
issued a Notice of Removal.1
Complainant, a City Letter Carrier at the Baker, Louisiana Post Office,
contends that she and a coworker overheard her supervisor say that
"a city carrier job was not a women's job." She maintains that after
she confronted her supervisor regarding this statement the route that
she had been carrying was removed. She indicates that she was issued a
Notice of Removal after she began complaining about the assignment that
she had been given, and her supervisor's treatment of women, and after
she filed the instant complaint.2
Following an investigation by the agency, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ held a
hearing regarding this complaint. After the hearing, the AJ issued a
Bench Decision finding no discrimination. The AJ found that the agency
had articulated legitimate nondiscriminatory reasons for its actions,
i.e., complainant was removed from her route because the agency had to
make a work adjustment and route 1407 had been deemed an auxiliary route.
An auxiliary route is one that has less than eight hours of work and once
complainant became a full-time regular employee3 she had to be guaranteed
eight hours of work. The agency explained that complainant was issued a
Notice of Removal because complainant had had six unscheduled absences,
and that the Notice of Removal was a result of progressive discipline,
as complainant had previously been issued three Letters of Warning, which
included two Letters of Warning for failure to follow instructions and
one for unsatisfactory attendance. She also had received two seven-day
suspensions for unsatisfactory attendance.
To show pretext, complainant argued that she was the only female carrier
and her supervisor thought that women should not be doing her job.
She maintained that her supervisor attempted to make her job as hard as
possible by giving her a long walking route, by her supervisor standing
less than 10 feet away from her, by repeatedly checking on her, by making
only women work Express Mail on Saturdays, and by calling her the nickname
"Ms. Dundee."4 Complainant also claimed that she was denied access to
her personnel file after repeated requests for access. The AJ determined
that complainant failed to show that these reasons were pretext for
discrimination. The AJ found, after the testimony of seven witnesses,
that complainant had failed to produce sufficient credible evidence to
carry her burden of proving that the events complained of were due to
her sex or were in reprisal for filing the instant complaint. Further,
the AJ determined that to the extent that complainant was alleging
a hostile work environment, the incidents complained of were neither
frequent enough nor severe enough to be considered harassment.
On appeal, complainant contends that her original complaint should have
been accepted and should not have been partially dismissed on procedural
grounds. Complainant also reiterates arguments previously made.
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).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the final agency
order. The Commission agrees that the agency articulated legitimate
nondiscriminatory reasons for its actions, namely, that complainant was
removed from the route because it had been deemed an auxiliary route.
The record shows that it had been deemed an auxiliary route in 1997,
pursuant to an agreement between management and the union and it had
been determined that the next time that routes needed to be adjusted,
this route would be the route chosen for the adjustment; accordingly,
the change in her assignment had nothing to do with complainant's sex.
Further, the record shows that complainant was issued a Notice of Removal
as a result of failure to following instructions and unsatisfactory
attendance.
Additionally, the Commission agrees that even when we consider all of the
incidents involved in this complaint they are not sufficiently severe
or pervasive enough to establish a hostile work environment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment)). In the case
at hand, the record indicates that the supervisor did not have an issue
with women in general but had a personality conflict with complainant as
a result of her attendance issues. Therefore, the Commissions finds that
complainant failed to show that the agency's nondiscriminatory articulated
reasons were pretext for sex discrimination or reprisal. Accordingly,
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the substantial evidence of record.
CONCLUSION
Based upon the foregoing, the agency's final order is AFFIRMED.
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
September 22, 2009
Date
1 The Notice of Removal was grieved and on August 26, 2005, the union
and management agreed to reduce her removal to a 7-day no-time-off
suspension which would be removed from her record after six months of
good performance.
2 Complainant's initial contact with the EEO office was on April 20,
2005.
3 Complainant had previously been a part-time flexible employee which
did not guarantee her eight hours of work a day. In July 2001, she
was promoted to a full-time carrier. She was assigned route 1407 at
that time. In March 2002, the facility was told that it had to adjust
its routes to reflect the work-hour savings. Route 1407 had been deemed
the auxiliary route.
4 The issues regarding complainant's supervisor standing less than 10
feet away from her, and only women being assigned to work Express Mail on
Saturdays, were originally included in complainant's complaint, but were
dismissed as untimely by the agency. Upon review, the Commission agrees
that the 2004 and 2003 events respectively were untimely and therefore
properly dismissed, noting that complainant offered no explanation for
her delay in initiating EEO contact regarding these matters. See 29
C.F.R. �1614.105(a0(2).
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0120080377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080377