0120090442
06-18-2010
Florine Matthews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.
Florine Matthews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120090442
Agency No. 6X-000-0029-08
DECISION
On October 31, 2008, Complainant filed an appeal from the Agency's October
21, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
decision.
ISSUE PRESENTED
The issue presented is whether Complainant demonstrated that the Agency's
actions were due to retaliation against her for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an EEO Alternative Dispute Resolution Specialist at the Dallas, Texas
EEO Compliance and Appeals Office. Complainant alleged that her managers
retaliated against her with regard to the approval of Complainant's
leave and the processing of necessary paperwork. Complainant maintains
that as a result of management's actions her life and health insurance
benefits were cancelled, and a Letter of Demand was initiated.
On May 28, 2008, Complainant filed the instant complaint alleging that
she was discriminated against on the basis of reprisal for prior protected
EEO activity when:
1. On March 27, 2008, management submitted her CA-2, Notice of
Occupational Illness, after a five-month delay;
2. On March 28, 2008, her request for donated leave was denied; and
3. On April 14, 2008, she received notice that her life insurance
and health insurance benefits had been terminated.
At the conclusion of 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). In accordance with
Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The Agency noted that Complainant had failed
to respond to a request for an affidavit from the Contract Investigator
assigned to the case. The Agency concluded that Complainant failed
to demonstrate that she was subjected to discrimination as alleged.
Specifically, the FAD indicated that Complainant failed to establish a
prima facie case of retaliation because, while she met the first three
elements of reprisal as to all of her claims, she failed to show that
the named Agency officials took the actions at issue because of her
prior protected activity and/or sought to deter Complainant or others
from EEO involvement.
Notwithstanding, the FAD maintained that assuming arguendo that
Complainant established a prima facie case of reprisal, management
had articulated legitimate nondiscriminatory reasons for its actions.
With regard to claim 1, Complainant's Acting Supervisor indicated that
the envelope that contained Complainant's CA-2 was received in the office
on November 13, 2007. She averred that the form was not intentionally
held for 5 months but was overlooked because it was attached to the
back of a three page letter addressed to another individual. The Acting
Supervisor indicated that she briefly scanned the first two pages of the
letter and determined that Complainant was providing the office with
a copy of the correspondence to the other individual and so she did
not notice that there was a CA-2 attached to the back of the letter.
The Acting Supervisor indicated that as soon as Complainant made her
aware that the CA-2 had not been forwarded she immediately submitted
the form to the Injury Compensation Office.
Regarding claim 2, the Acting Supervisor indicated that she disapproved
Complainant's request for donated leave based on the lack of information
available to determine whether Complainant's health condition was
job-related. The Acting Supervisor explained that one of the stipulations
for receiving donated leave is that the health condition cannot be
job-related but Complainant had submitted a CA-2, which indicated that
the condition was job-related. The Acting Supervisor indicated that
she tried to contact Complainant by both email and telephone to discuss
this matter but was unsuccessful. The Acting Supervisor explained that
she denied Complainant's request for donated leave because of questions
regarding whether Complainant's injury was job-related.
With regard to claim 3, the Acting Supervisor noted that Complainant
had been on continuous Leave Without Pay status since February 26,
2007; however, she maintained that she did not terminate Complainant's
health and life insurance benefits and was not familiar with the policy
concerning such terminations. The Acting Supervisor indicated that she
does not recall being notified about the termination of these benefits
and only learned about it from correspondence received from Complainant.
The Agency indicated that Complainant failed to show that its articulated
nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she has been denied due process
and maintains that the procedural processing by both the Agency and the
Contract Investigator have been biased. She contends the Agency failed
to respond to her correspondence regarding the claims accepted for the
investigation. She also contends that the Contract Investigator failed
to call or send correspondence to inquire why she had not responded.
She explains that the Contract Investigator attempted to contact her
on only one occasion and at the least she should have been afforded a
courtesy call.
In response, the Agency contends that Complainant has not provided
any evidence which demonstrates that the Agency's articulated
nondiscriminatory reasons were pretext for discrimination. The Agency
notes that Complainant is an EEO professional and is well aware of the
need to provide an affidavit. The Agency requests that its decision
finding no discrimination be affirmed.
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").
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a Complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the Agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that Agency's FAD should be affirmed. The Commission finds that,
even if we assume arguendo that Complainant established a prima facie
case of discrimination based on reprisal, the Agency has articulated
legitimate, nondiscriminatory reasons for its actions, as cited above,
and Complainant has failed to show that those reasons were pretext
for discrimination. Complainant has not presented any evidence which
suggests that discriminatory animus was involved with respect to these
incidents. Further, regarding Complainant's contentions on appeal,
apart from Complainant's conclusory statements, she has provided no
evidence which to support a finding that the Agency and the Contract
Investigator have not afforded her due process.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is
AFFIRMED.
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
June 18, 2010
Date
2
0120090442
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090442