Angela L. Bajoie, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 22, 2009
0120080377 (E.E.O.C. Sep. 22, 2009)

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