0120102525
07-11-2012
Crystal I. Bush, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Crystal I. Bush,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102525
Hearing No. 440-2009-00155X
Agency No. 4J-606-0190-08
DECISION
On May 25, 2010, Complainant filed an appeal from the Agency's April 22, 2010 final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant began working as a part-time flexible Letter Carrier for the Agency in April 2007. She was originally assigned to the Lincolnwood Station in Illinois where she completed her probationary period. However, management at the Lincolnwood Station considered Complainant to be a slow carrier who asked a lot of questions and did not appear to understand her job duties.
In August 2007, the Acting Manager at the Lincolnwood Station received a phone call from the Area Manager who instructed him to have the most junior part-time flexible carrier sent to the Roberto Clemente Station in Chicago. At the time, Roberto Clemente was experiencing extensive problems with delivering the mail in a timely manner and with carriers remaining out on their routes late into the night. These problems were well publicized by the local media. The station was without assigned carriers for over 35 routes. Management's solution to this problem was to reinforce the staffing levels at Roberto Clemente with part-time flexible carriers.
Complainant was transferred to Roberto Clemente. The quality of Complainant's life deteriorated. Her commute was longer, her mother passed away, and she was a widow raising two daughters, one of whom was having significant problems that caused Complainant to incur several unscheduled absences that resulted in a letter of warning. Due to the significant mail delivery problems at Roberto Clemente, managers there had very little sympathy for the personal problems the carriers were experiencing and did not accommodate their needs.
In February 2008, Complainant suffered an on the job injury to her wrists. Management attempted to provide her with limited duty work but Complainant was restricted to performing mainly clerk craft duties which the collective bargaining unit prohibited management from assigning to carriers. On some occasions, Complainant was sent home because there was no carrier work available within her restrictions. She was cleared to return to full duty in August 2008.
On December 30, 2008, Complainant filed an EEO complaint alleging that the Agency harassed her on the bases of race (African-American), sex (female), disability, and in reprisal for prior protected EEO activity when: she was transferred from the Lincolnwood Station to the Roberto Clemente Station; her job was constantly threatened; her disability was discussed inappropriately; she was sent home without work; and she was forced to work outside of her medical restrictions. At the conclusion of the investigation, 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). Complainant timely requested a hearing and the AJ held a hearing on March 22, 2010 during which eight witnesses testified. The AJ issued a decision on April 8, 2010.
In his decision, the AJ found that Complainant failed to prove her transfer from Lincolnwood to Roberto Clemente was unlawfully motivated. The AJ found that Complainant failed to prove she was not the most junior part-time flexible carrier at Lincolnwood but that even if she could have proven it, it was clear that Lincolnwood's management did not think highly of her work performance. The AJ found credible evidence that the instruction from the Area Manager and management's dissatisfaction with Complainant's ability to do her job motivated the transfer and no evidence that her race, sex or disability were involved. 1 The AJ found that the evidence supported a conclusion that the transfer was motivated, not by discriminatory animus, but by the fact that Complainant was a "slow carrier."
The AJ then addressed Complainant's claim that she was harassed at Roberto Clemente and again concluded that she failed to meet her burden of proof. He found no credible evidence that her confidential medical information was inappropriately discussed or that she was required to work outside of her restrictions. He also credited management's testimony that Complainant was only sent home when there was no work she could perform within her craft and within her restrictions. Finally, the AJ concluded:
[t]he Complainant's case is based on conclusory assertions and accusations of harassment and wrongdoing without any supporting evidence. . .
During this time period when Roberto Clemente was in turmoil, the Complainant's own life was in turmoil with family difficulties. Based on the circumstances of this case and the information provided by the parties, the stressful situation the Complainant experienced was not triggered by discrimination but by the combination of poor management at Roberto Clemente and the Complainant's own poor state of family affairs.
AJ Decision at 14-16. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed, but Complainant did not submit a statement in support of it.
STANDARD OR REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Upon review of the record, we discern no basis to disturb the AJ's decision. Complainant has not introduced any documentation or other objective evidence that would undermine any of the AJ's credibility determinations, and substantial evidence in the record supports the AJ's conclusion that management's actions towards Complainant were not motivated by unlawful animus towards her protected bases. While we acknowledge the stress Complainant experienced, the record does not support a finding that the Agency violated Title VII or the Rehabilitation Act. For these reasons, we AFFIRM the Agency's final order.
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.
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
July 11, 2012
__________________
Date
1 At the time of the transfer in August 2007, Complainant had no prior protected activity.
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0120102525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102525