0120064569
03-13-2008
Carolyn J. Duplechin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Carolyn J. Duplechin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01200645691
Agency No. 4G-770-0084-06
DECISION
On July 31, 2006, complainant filed an appeal from the agency's July 14,
2006, final decision 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 decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as an Occupational Health Nurse, Grade/Step 01/09 at the Barbara
Jordan Post Office in Houston, Texas. In January 2006, complainant
filed an EEO complaint alleging that she was discriminated against and
subjected to harassment in reprisal for prior protected EEO activity
(arising under Title VII) when, on December 5, 2005, her request for light
duty was denied; she was given numerous discussions and pre-disciplinary
meetings regarding her work performance; and she was threatened by the
Nurse Administrator (Supervisor).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a 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 final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged. The agency decision
also held that complainant failed to establish that she was subjected to
harassment that was sufficiently severe or pervasive to create a hostile
work environment.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she has been continually subjected to a
hostile work environment, challenges the credibility of the Supervisor's
testimony, and expands upon the evidence contained in the record.
Complainant also argues, for the first time on appeal, that she was
subjected to discrimination based on her age, race, and disability.
The agency did not provide a response to complainant's appeal.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
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 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). 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). If the agency is successful, then the complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
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).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The record reflects that the Supervisor indicated
that she denied complainant's request for light duty on December 5,
2005 because complainant did not properly address what duties she could
or could not perform. Complainant subsequently provided clarification,
but the Supervisor denied complainant's request for light duty again on
December 13, 2005 for the same reason. With respect to the discussions
and pre-disciplinary meetings, the Supervisor provided an affidavit
in the record stating that complainant was given official discussions
on February 14, 2005 and March 9, 2005, and she was issued a Letter
of Warning on April 22, 2005, for failure to follow a direct order
and unsatisfactory work performance. Complainant was also issued a
pre-disciplinary interview for a 7-day suspension on September 19,
2005, but this was later reduced to a discussion after consultation
with the union representative. On December 9, 2005, the Supervisor
instructed complainant to stock the first aid boxes and throw out
expired medication. The Supervisor indicated that complainant
refused to do stock the first aid boxes, and, on December 13, 2005,
complainant was provided with a pre-disciplinary interview for failure
to follow instructions. The Supervisor stated that, on December 15,
2005, she spoke with complainant about complainant's failure to purge
a file from the retriever. The Supervisor indicated that complainant
had been assigned this task in April 2005. The Supervisor denied ever
threatening complainant, and she noted in her affidavit that complainant
"is very argumentative, consistently refuse[s] to follow instructions and,
in some instances, walk[s] off, while I am trying to address the issues."
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. We find that complainant failed to provide any
evidence of pretext in the record. Although complainant challenges her
supervisors' credibility, we note that she did not request a hearing
in a timely manner, and the Commission is limited to a review of the
record evidence. As a neutral party, we are not persuaded, based on the
record of investigation, that complainant has shown that the agency's
articulated reasons for its actions were a pretext for retaliation.
Moreover, regarding her light duty requests, we note that the Supervisor
granted complainant's previous request for light duty in October 2005.
Furthermore, we find that the record is devoid of any evidence that the
agency's actions were motivated by a retaliatory motive.
With respect to her harassment claim, in addition to the aforementioned
allegations, complainant alleges that the Supervisor threatened her on
several occasions, made derogatory comments about her to her coworkers,
and unfairly disciplined her for her work performance and attendance
during the relevant time period. Harassment is actionable only if the
incidents to which complainant has been subjected were "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). To establish a prima facie
case of harassment, complainant must show that: (1) she is a member of
a statutorily protected class and/or was engaged in prior EEO activity;
(2) she was subjected to unwelcome verbal or physical conduct related
to her membership in that class and/or her prior EEO activity; (3) the
harassment complained of was based on her membership in that class and/or
her prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the
harasser's conduct is to be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994).
While the record strongly suggests that complainant did not get along
with her supervisor, we find no persuasive evidence in the record to
show that a reasonable fact finder would find that any of the alleged
harassment was motivated by retaliatory animus. Finally, we note
that complainant raises new allegations of discrimination on appeal.
Complainant is advised to initiate contact with an EEO Counselor if
she wishes to pursue any of these allegations. The Commission will not
accept new claims raised for the first time on appeal.
CONCLUSION
Accordingly, based on a thorough review of the record, including the
evidence not specifically addressed herein, the agency's final decision
finding 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:
______________________________ March 13, 2008
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
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0120064569
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064569