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

Equal Employment Opportunity Commission

Jun 14, 2013

0120120015 (E.E.O.C. Jun. 14, 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
(Northeast Area),
Agency.

Appeal No. 0120120015

Agency No. 4B-060-0008-11

DECISION

On September 15, 2011, Complainant filed an appeal from the Agency’s September 1, 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. The Commission deems the appeal timely and accepts
it for de novo review 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 events giving rise to this complaint, Complainant worked as a Sales & Services
Distribution Associate at the Agency’s Silver Lane Branch Post Office in the Hartford,
Connecticut Postal District. In late October 2010, Complainant learned that the bid assignment
she encumbered would be abolished. Consequently, she became an unassigned regular and
was assigned to the Processing & Distribution Center with a new schedule and new off days.
A few days prior to her reassignment, Complainant asked for a temporary schedule change,
and it was denied. In March 2011, Complainant successfully bid on a Sales & Services
Distribution Associate position at the Barry Square facility.

On February 10, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian), sex (female), and in reprisal for
prior protected EEO activity when her bid was abolished, she was reassigned and her request
for a schedule change was denied.1

1 The Agency dismissed two additional claims for procedural defects. Complainant has not
challenged the dismissals on appeal, and we decline to review them further.
At the conclusion of the investigation, the Agency
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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).2

The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS

The record establishes that several bids were abolished on certain tours throughout the District
due to machines eliminating the need for as many employees and because of efforts to increase
operational efficiency. Because bid assignments are tied to schedules, an employee’s schedule
could determine whether his or her bid would be abolished. Complainant identified several
Sales & Services Distribution Associates at the Silver Lane Branch who she believed were
treated more favorably than she was. However, with one exception, all of the identified
employees had greater seniority than Complainant. The employee with lesser seniority was,
like Complainant, a White female, and she worked a different schedule. Thus, her bid was not
abolished.

Even assuming Complainant established a prima facie case of discrimination and retaliation,
management explained that the Silver Lane Branch became overstaffed in the morning
positions as the new Flat Sorting Machines made it possible to cut costs and staffing.
Complainant’s position was abolished to “right size the office for work hours.” This is a
legitimate and non-discriminatory reason. When Complainant attempted to remain working the
same schedule at her new job that she had worked at her old job by asking for a schedule
change, her request was denied since the new position did not encompass those hours. There
is no evidence in the record from which we could conclude that Complainant’s race, sex or
prior protected activity factored into the Agency’s actions at issue in this complaint. For these
reasons, we AFFIRM the Agency’s final decision.

Finally, based on Complainant’s submissions on appeal, it is clear that she is trying to allege
breach of a settlement wherein, inter alia, she agreed to withdraw Agency Case No. 4B-060-
0070-09. The Commission’s regulations require breach claims to be brought to the attention of
the EEO Director, in writing. 29 C.F.R. § 1614.504. Therefore, if Complainant wishes to
pursue her claim of non-compliance, she should do so pursuant to the guidelines set forth in the
regulation.

2 On appeal, Complainant claims she requested a hearing from the Commission’s New York
District Office and asked the District Office to forward a copy of her request to the Agency.
She enclosed copies of certified mail receipts but they do not indicate what it is she mailed to
the New York District Office. Further, we have reviewed the Commission’s record system for
the Hearing Units and found no evidence that her request for a hearing was docketed.
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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
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.

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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 14, 2013
Date