Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120120742 (E.E.O.C. Jun. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120120742

Agency No. 4K-280-0081-11

DECISION

On November 28, 2011, Complainant filed an appeal from the Agency’s October 28, 2011,
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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at
the Agency’s Jacksonville Post Office-Brynn Marr Annex located in Jacksonville, North
Carolina. During the relevant time Person A was the Manager, Customer Service and directly
supervised the rural carriers. Person B was a Postmaster of the Coastal Cluster Rural Blitz
Team. Person C was the Postmaster at the Jacksonville-Brynn Marr Annex.

On June 9, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Caucasian), sex (female), disability (degenerative arthritis in
lower back), age (56), and in reprisal for getting her job back:

1. On January 28, 2011, Complainant’s manager made derogatory comments against
her;
2. On March 12, 2011, Complainant was issued a Notice of Removal for
Unsatisfactory Work Performance and Unsafe Act; and
3. On May 13, 2011, Complainant’s manager violated the HIPPA Act.
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On June 20, 2011, the Agency accepted issue (2) for processing. The Agency dismissed issue
(1) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
Specifically, the Agency noted that Complainant did not contact an EEO Counselor until April
15, 2011, which was approximately 77 days after the alleged remarks made by her manager.
The Agency noted this was well beyond 45 days after the alleged discriminatory action took
place. In addition, the Agency dismissed both issue (1) and (3) pursuant to 29 C.F.R.
§1614.107(a)(1), for failure to state a claim.

At the conclusion of the investigation on the accepted issue, the Agency provided Complainant
with a copy of the report of investigation 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 final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at 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”).

At the outset, we note that Complainant does not challenge the Agency's dismissal of issues (1)
or (3). Nevertheless, we find that issue (1) was properly dismissed for untimely EEO
Counselor contact and that issue (3) was properly dismissed for failure to state a claim.
Furthermore, we find that Complainant has not stated a claim of a hostile work environment.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
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reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

In the present case, the Agency issued the Notice of Removal for Unsatisfactory Work
Performance and Unsafe Act dated March 12, 2011, to Complainant. Complainant was
charged with unsatisfactory work performance when she failed to complete delivery of all mail
entrusted to her, failed to scan a signature confirmation parcel as attempted, and mixed
collection mail with mail intended for delivery on that day. Complainant was charged with
unsafe acts for failing to stop at a stop sign, having her view blocked by items on the
dashboard, not using her turn signals to indicate her intentions, and not curbing her wheels
when her vehicle was parked. The removal also noted Complainant’s discipline of a long term
suspension for unsatisfactory work performance, unsafe act, and a preventable motor vehicle
accident was taken into consideration. The removal was issued by Person A and concurred
with by the Person C.

The record contains PS Forms 4584, Observations of Driving Practices conducted on
Complainant on February 15 and 25, 2011. The February 15, 2011 observation was
conducted by Person A and indicated Complainant was out of sight of her vehicle for more
than ten minutes at Puller Place and she needed to curb vehicle tires and secure the vehicle
when out of sight of it. The observation indicated the recommended action to be taken was to
inform Complainant and retrain if necessary. The February 25, 2011 observation was
conducted by Person B, of the Rural Blitz Team and indicated Complainant had a magazine
covering her position of sight through the windshield and stated she ran a stop sign at
Stagecoach & Hills Lorough Loop. The observation indicated the action to be taken was that
an investigation would be conducted and appropriate action would follow.

The record also contains a Signature Confirmation Missed Scans Report for Route C4617
indicating Label ID #23082940000014494426 was missed on February 26, 2011. The report
included a copy of the Priority Mail Envelope addressed to a particular address with a
signature confirmation label and the USPS Track/Confirm inquiry which indicated the
envelope was out for delivery on February 26, 2011, but the delivery status was not updated.

Complainant stated she was issued the Notice of Removal because Person A alleged she missed
a scan (signature of delivery) and that she did not curb her wheels. Complainant
acknowledged that these allegations were true, but she claimed they only occurred at one stop
on her route because she was rushing to finish her route and make dispatch. Complainant
explained it was not a deliberate act. She asserted an average rural route consisted of eight
hours and 650 stops and she was carrying over 1,093 boxes which was 9 ½ hours of work.

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Complainant stated management made her aware her performance was unsatisfactory prior to
the notice of removal in February 2011, when she missed a scan. However, she stated
although Person A advised of her unsatisfactory work performance, he never retrained her or
adjusted her route or conducted any self improvement measures. Complainant also stated that
management never provided any counseling, training, or advice to her on how to improve her
performance. Complainant alleged Person A would only make negative remarks towards her
and would never give her advice or training for improvement.

In addition, Complainant identified Person 1, Person 2, Person 3, and Person 4 as employees
who she alleged received more favorable treatment. Specifically, she alleged Person 1 had a
fifty-pound weight restriction as opposed to Complainant having to lift the maximum.
Complainant averred Person 2 would leave footlockers behind at the Post Office in contrast to
Complainant being required to carry hers. Complainant also contended Person 3 and Person 4
both missed scans, but only received a Letter of Warning (LOW), as opposed to Complainant
receiving a Notice of Removal.

In his affidavit, Person A stated he did not issue any discipline to either Person 3 or Person 4.
Person A explained there were no similar infractions committed by other employees like the
infractions committed by Complainant prior to March 12, 2011. The Agency noted that
Person 1 and Person 2 were not similarly situated and there was no evidence they engaged in
similar misconduct as Complainant. The Agency stated Person 3 and Person 4 were not
similarly situated since there was no evidence they also, failed to deliver mail resulting in the
mail being curtailed, co-mingled mail resulting in a delay of mail, or committed an unsafe act
like Complainant. Additionally, the Agency contended there was no evidence either Person 3
or Person 4 had prior discipline warranting more severe discipline than a LOW. Moreover,
the Agency noted that Person 1, Person 2, and Person 3 are all female like Complainant and
thus, not outside her protected class of sex. The Agency noted Person 2, Person 3, and Person
4 are all White like Complainant, and thus, not outside her protected class of race. Finally,
the Agency noted that Person 4 was older than Complainant.

In an attempt to show pretext, Complainant alleged that her race was a factor in being issued
the Notice of Removal because if she was not an older, White, female, the decision would
have been different. Complainant also stated she believed she was issued a Notice of Removal
because with age and physical problems she had to slow down and the post office did not favor
this. Complainant also stated in her affidavit that she was not alleging the treatment she
received was because of her age. Moreover, Complainant stated she had not engaged in prior
EEO activity. She explained that she was not alleging EEO retaliation. Rather, Complainant
stated that she believed Person A retaliated against her because she had returned to work after
an eight-month suspension as a result of a grievance and that Person A was unhappy that she
returned to work. Complainant also alleged that her race was a factor because she stated that
Person A would have found it more difficult to stand up against a Black woman, a Black man,
or a White man.

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With regard to her claimed disability, Complainant stated that she was doing the best she
could, but she could not make management’s numbers look good. She claimed management
wanted someone that did not have difficulty in bending, twisting, lifting, climbing, and driving
long hours. Complainant, however, does not claim that was denied a reasonable
accommodation. We do not address in this decision whether Complainant is a qualified
individual with a disability.

Upon review, we do not find the identified employees to be comparatives to Complainant. We
find the Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant
failed to show by a preponderance of evidence that the Agency’s actions were a pretext for
prohibited discrimination or retaliation.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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 (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
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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 20, 2013
Date