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

Equal Employment Opportunity Commission

Feb 21, 2013

0120114209 (E.E.O.C. Feb. 21, 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
(Western Area),
Agency.

Appeal No. 0120114209
Hearing No. 540-2011-00093X
Agency No. 4E-852-0057-101

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 12, 2011 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transitional
Employee City Carrier at the Agency’s Mary Vale and Northeast Stations in Phoenix, Arizona.
On August 3, 2010 (and amended on October 29, 2010), Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of race (African-American) and
sex (female) when:

1. On June 15, 2010, she was given a fact-finding investigation and then sent home
and

2. Between September 18, 2010 and October 1, 2010, her work hours were reduced.2

1 The Commission notes that at various points in the record, the complaint is identified as
Agency No. 4E-852-0087-10.

2 The Agency dismissed two additional claims for failure to state a claim. Complainant raised
no objections to the dismissals on appeal; therefore, the Commission will not address the
dismissed claims in this decision.

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Subsequently, Complainant contacted an EEO counselor to allege that the Agency
discriminated against her on the bases of race, sex and in reprisal for prior protected EEO
activity when:

3. On February 8, 2011, her Transitional Employment appointment was not renewed.3

At the conclusion of the investigation, the Agency provided Complainant with copies of the
report of investigation (ROI) and supplemental report of investigation (SROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted Complainant’s motion and
consolidated the two complaints. Subsequently, Complainant withdrew her hearing request.
Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination on the alleged bases and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant’s
supervisor (S1) affirmed that Complainant had difficulty completing her assigned routes in the
allotted street time. S1 had a documented discussion with Complainant on May 28, 2010,
regarding her street times and failure to follow call-in procedures. On June 2, 2010,
Complainant was assigned a route and it took her nine and half hours to complete the route
resulting in an overrun of three hours. As a result, S1 held a second fact-finding investigation
to determine why it took her three hours longer to complete the route. On June 14, 2010, S1
held another fact-finding investigation with Complainant after she failed to timely complete an
auxiliary route and a one-hour relay. Complainant did not provide a sufficient justification for
not making the allotted street time. S1 determined that Complainant was not improving and
that management could not allow her to continue to negatively impact their budgeted street
hours; therefore, he sent her home.

Regarding claim (2), Complainant was working at the Northeast Station in September 2010.
Complainant’s supervisor there (S2) explained she assigned hours and set up the operation
based on the needs of the operation and her knowledge of employee performance. As a result,
hours fluctuated based on the needs of the operation and transitional employees were only
guaranteed four hours of work when scheduled. S2 noted that Complainant had demonstrated
that she could not accomplish her assigned duties within the timeframes given and when asked
to explain, Complainant provided no explanation. As a result, Complainant was scheduled
based on her demonstrated performance.

Finally, as to claim (3), the Northeast Station Manager (M1) confirmed that he recommended
that Complainant’s appointment not be renewed after she expressed to him that she wanted to
pursue other opportunities outside of the Agency. S2 added that Complainant was not renewed

3 The record suggests that the Agency identified this informal complaint as Agency No. 4E-
852-0046-11.
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3
based on her request to M1, the continued expansion of work hours assigned to her, and her
repeated occurrences of unscheduled leave and tardiness.

The Agency concluded that Complainant had presented no evidence establishing that
management’s reasons for its actions were pretextual. As a result, the Agency concluded that
Complainant had not been discriminated against as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ misconstrued her withdrawal motion and
remanded her complaint to the Agency for a FAD when she actually intended to file a civil suit
against the Agency. Further, Complainant argues that the Agency’s reasons for her non-
renewal are pretextual as her alleged performance issues had not been properly addressed with
her. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant’s hearing withdrawal request.
The record reveals that on May 24, 2011, and renewed on June 7, 2011, Complainant
submitted to the AJ a “Motion to Withdraw Complaint with EEOC and Have Right to Sue
Letter Issued.” As a result, the AJ assigned to the case issued an order remanding the
complaint to the Agency for a FAD. Additionally, Complainant was informed that “right to
sue” letters are not issued in the federal sector EEO process; rather, Complainant could file in
federal court after 180 days had passed from the filing of her individual complaint if an appeal
had not been filed and final action had not been taken. Additionally, Complainant was
informed that she could file in federal court within 90 days of receipt of the final action on an
individual complaint if no appeal had been filed. As a result, the AJ remanded the complaint
and ordered the Agency to issue a FAD.

Complainant contends that she requested a “right to sue” letter, not a final Agency decision.
Upon review, the Commission finds that the AJ properly dismissed Complainant's hearing
request. Although Complainant expressed an intention to file her complaint in federal court,
there is no evidence that Complainant filed a civil action under 29 C.F.R. §1614.401, which
would terminate the processing of her administrative complaint. However, Complainant
clearly expressed her intention to the AJ in writing to withdraw her hearing request.
Therefore, the Commission finds that the AJ’s dismissal of Complainant's hearing request was
proper.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
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inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for it actions. Specifically, as to claim (1), S1 affirmed that
Complainant had difficulties completing her assigned duties in the allotted street time. ROI,
118. On three occasions, S1 met with Complainant to determine why she was going over her
allotted time and Complainant could not provide an explanation. Id. It became clear to S1 that
Complainant was not improving and management could not continue to allow her to negatively
impact their budgeted street hours. Id. As a result, S1 sent Complainant home after the June
15, 2010 fact-finding investigation. Id.

Regarding claim (2), S2 stated that schedule hours fluctuate based on the needs of the operation
and Complainant was scheduled based on her demonstrated performance. ROI, at 155. S2
noted that transitional employees are only guaranteed four hours when scheduled. Id. S2
explained that Complainant’s hours were not reduced; rather, she scheduled Complainant based
on her knowledge that the hours would need to be expanded to a full eight-hour day based on
Complainant’s performance. Id. at 156.

Finally, with respect to claim (3), M1 explained that transitional employment appointments are
for one year and are considered for renewal upon expiration. M1 confirmed that he
recommended that Complainant’s appointment not be renewed after she expressed to him that
she wanted to pursue other opportunities outside of the Agency. SROI, at 47. S2 added that
Complainant was also not renewed based on the continued expansion of work hours assigned to
her and repeated occurrences of unscheduled leave and tardiness. SROI, at 30.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. 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.

Complainant chose to withdraw her request for a hearing. The Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
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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. Thus, based on the evidence presented herein, the
Commission concurs with the Agency that Complainant failed to prove management’s reasons
for its actions were pretext for unlawful discrimination.

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 Agency’s final decision 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).
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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

February 21, 2013
Date