0120082200
09-04-2009
Dienesha A. Yancey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Dienesha A. Yancey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120082200
Hearing No. 440-2008-00017X
Agency No. 4J-606-0062-07
DECISION
On April 11, 2008, complainant filed an appeal from the agency's April
23, 2008 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).1 For the following reasons, the Commission AFFIRMS the
agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected to
unlawful discrimination when it issued complainant a notice of removal
for workplace conduct that occurred on or about November 2006.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a part-time city carrier at the agency's facility in Chicago, Illinois.
On May 31, 2007 complainant filed an EEO complaint alleging that she
was discriminated against on the bases of color (light complexion),
disability, and age (born in January 1980) when the agency issued her
a notice of removal on January 28, 2007.
In a notice dated June 11, 2007, the agency dismissed complainant's age
discrimination claim on the basis that she was under 40 years old and
therefore did not have standing to assert an ADEA claim. The agency
accepted complainant's color and disability discrimination claims for
investigation.
In an investigative affidavit, a Manager (M1) stated that complainant was
issued a notice of removal because she had an altercation with another
employee on November 1, 2006 in which she displayed threatening and
violent behavior. M1 further stated that complainant was also issued
the notice because she failed to maintain regular work attendance.
M1 stated that she initiated the request for removal to Labor Relations
but was reassigned to another facility before Labor Relations made a
decision on the matter.
M1 provided a memorandum dated November 1, 2006 for the record. In the
memorandum, M1 stated that on November 1, 2006, she observed a co-worker
restraining complainant. M1 further stated that when she inquired about
the incident, complainant became "very loud" and started calling another
employee "fat lazy cow, fat ass, and lazy cow." Affidavit C, p. 4.
M1 stated that she instructed complainant to lower her voice and cease
using such language, but complainant became even louder, continued to
call the co-worker explicit names, and disrupted the work environment.
M1 stated that she ordered complainant to leave the building immediately,
and complainant responded, "Good, I wanted to go home any way." Id.
M1 stated that as complainant left the office, she stated, "3, 4, 5,
you lazy ass, I be back up here to deal with you." Id.
The record also contains a copy of the November 28, 2006 notice of removal
issued to complainant. The notice states that complainant was removed
for unacceptable conduct and failure to maintain regular attendance.
The notice further states that on November 1, 2006, M1 observed another
employee restraining complainant and instructed complainant to calm down,
but complainant called a co-worker a "fat lazy cow," became louder and
continued to use explicit language, and stated that she would return to
the office and "deal" with the co-worker. Additionally, the notice states
that complainant amassed eight unscheduled absences during a 12-day period
in October 2006. The notice further stated that complainant received
a 14-day suspension on October 17, 2006 for failure to maintain regular
attendance; a 14-day suspension on May 10, 2006 for failure to maintain
regular attendance; a 7-day suspension on January 3, 2006 for failure
to maintain regular attendance; and, a Letter of Warning on November 9,
2005 for failure to maintain regular attendance.
After the investigation, complainant was provided with a copy of the
report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. On February 12, 2008, the AJ ordered complainant to show
cause by February 28, 2008 why sanctions should not be imposed for her
failure to timely submit prehearing submissions. Complainant failed
to timely respond to the AJ's order, and the AJ dismissed complainant's
request for a hearing on March 10, 2008. The AJ remanded the complaint
to the agency, and the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). In its final decision, the agency concluded that
complainant failed to prove that she was subjected to discrimination as
alleged because she did not establish a prima facie case of discrimination
or persuasively rebut the agency's non-discriminatory explanations for
its actions.
CONTENTIONS ON APPEAL
In a one-paragraph appeal statement, complainant merely contends that
she was unable to respond to the AJ's order to show cause because she
"moved and didn't inform the Administrative Judge of my current mailing
address in a timely manner."2 The agency requests that we affirm its
final decision.
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").
Age Discrimination
The Age Discrimination in Employment Act provides that employees at
least 40 years old shall be made free from any discrimination based on
age. 29 U.S.C � 633 (a); see also 29 C.F.R. � 1614.103(a). The record
reveals that complainant is under 40 years of age; therefore, her age
discrimination allegation fails to state a claim. Thus, we affirm the
agency's dismissal of complainant's age discrimination claim.
Disparate Treatment
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 he or
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant is a qualified individual with a
disability and established a prima facie case of color and disability
discrimination, we nonetheless find that the agency provided legitimate,
non-discriminatory explanations for issuing complainant a notice of
removal, as detailed above. In an investigative affidavit, complainant
maintained that five less attractive co-workers of a different complexion
were treated more favorably than she was treated.3 However, complainant
failed to show that these co-workers engaged in the same type of
insubordinate and threatening conduct cited by the agency as the basis
for complainant's notice of removal. Complainant also maintained that
management discriminated against her because she had another supervisor
arrested for making a threat, but complainant did not establish that
the matter involved EEO issues nor did she allege that her removal was
based on retaliation. We determine that complainant failed to prove
that the agency's non-discriminatory explanations were pretext for
unlawful discrimination. Thus, we find that the agency properly found
no discrimination.
CONCLUSION
After a review of the record in its entirety, 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 (M1208)
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 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 (S0408)
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 (Z1008)
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
______9-04-09____________
Date
1 We note that complainant prematurely appealed this matter to the
Commission before the issuance of the agency's final order. However,
because the agency subsequently issued a final order adopting the AJ's
decision, we nonetheless accept complainant's appeal.
2 Because complainant acknowledges her failure to apprize the AJ of her
updated address and does not challenge the dismissal of her hearing
request on appeal, we find no basis to reverse the AJ's dismissal of
complainant's hearing request.
3 Complainant also maintained that all of the supervisors, with the
exception of two, were dark-skinned.
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0120082200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082200