0120091236
06-30-2011
April Swearingen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
April Swearingen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091236
Agency No. 4H-310-0103-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the January 12, 2009 final Agency decision (FAD) 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Carrier at the Agency’s Post Office in Warner Robins, Georgia.
On January 24, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Caucasian),
sex (female), color (White), and disability when, beginning April 23,
2008 and continuing, she has not been allowed to serve in a higher level
Acting Supervisor position.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).
The FAD initially found that Complainant had not established a prima facie
case of discrimination on the alleged bases. Nonetheless, the FAD assumed
Complainant had established a prima facie case of discrimination and
determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the Postmaster affirmed that when
he returned from a detail assignment in April 2008, he was determined to
reduce the massive overruns in his budget. He averred that he retained
the most experienced group of supervisors and ended Complainant’s higher
level detail assignment as he was not going to inflate work hours by using
an extra supervisor unnecessarily. Further, the Postmaster maintained
that he continued to utilize the named comparator (CW1) because of
his vast array of training and experience as compared to Complainant.
In addition, CW1 had more than five years of experience as an acting
supervisor and was able to run all areas of the Post Office. Finally,
the Postmaster added that Complainant has been utilized in an acting
supervisor position on a weekly basis since August 19, 2008.
Next, the FAD determined that Complainant had presented no evidence that
the Agency’s reasons were pretextual. As a result, the FAD found that
Complainant had not been discriminated against on the alleged bases.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Postmaster informed her that he
was terminating her detail assignment based solely on her limited-duty
status. Complainant contends that she was ridiculed and humiliated
by the way management handled the situation. Further, Complainant
argues that the Postmaster reversed the changes to the unit that the
former Officer-in-Charge implemented without any legitimate reason.
Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-15 (Nov. 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law”).
Disparate Treatment
The Commission notes that a claim of disparate treatment is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
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 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
For purposes of this decision, the Commission will assume, without so
finding, that Complainant is an individual with a disability entitled
to coverage under the Rehabilitation Act and has otherwise established a
prima facie case of discrimination on the alleged bases. The Commission
finds that the Agency has articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the Postmaster maintained that the
Agency’s budget shortfall was the only reason he ended Complainant’s
detail assignment. ROI, Postmaster’s Aff., at 2. The Postmaster stated
that the facility had massive overruns in the budget and he decided to
reduce work hours by only using the most experienced group of supervisors.
Id. The Postmaster maintained that CW1 met the qualifications to continue
serving as an acting supervisor as he had been acting in the position for
at least five years and could run all areas of the Post Office. Id. at 3.
In addition, the Postmaster denied that he ever told Complainant that he
was ending her detail assignment because of her limited-duty status. Id.
Finally, the Postmaster added that CW1 has been utilized as an acting
supervisor weekly since August 19, 2008. Id. at 2.
Complainant now bears the burden of establishing that the Agency's stated
reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec'y
Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this
directly by showing that the Agency's proffered explanation is unworthy
of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
The Commission finds that the record is devoid of any persuasive evidence
that discrimination was a factor in any of the Agency's actions. At all
times, the ultimate burden of persuasion remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons, and that the Agency acted on the
basis of discriminatory animus. Complainant has failed to carry this
burden. Accordingly, the Commission finds that Complainant has failed
to show that she was discriminated against as alleged.
CONCLUSION
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 FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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
June 30, 2011
Date
2
0120091236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091236