Gloria A. Pacheco, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 7, 2007
0120062884 (E.E.O.C. Sep. 7, 2007)

0120062884

09-07-2007

Gloria A. Pacheco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gloria A. Pacheco,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200628841

Hearing No. 350-2003-08143X

Agency No. 1E-871-0024-02

DECISION

On March 31, 2006, complainant filed an appeal from the agency's March 22,

2006 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 deemed timely and is accepted 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 Clerk at the agency's Processing and Distribution Center facility

in Albuquerque, New Mexico. On April 26, 2002, complainant filed an EEO

complaint alleging that she was discriminated against on the bases2 of

national origin (Hispanic), sex (female), and in retaliation for engaging

in previous EEO activity when:

1. In November 1999, complainant's supervisor shorted complainant's

check more than once causing an adjustment to be made;

2. On July 20, August 31; September 24 and December 7, 2001,

complainant was denied the opportunity to work overtime;

3. On July 1, 2001, complainant was denied a temporary light duty

assignment;

4. On October 12, 2001, complainant's supervisor harassed her when

complainant went to get gloves from the maintenance office;

5. On December 8, 2001, complainant was harassed by her supervisor

when her supervisor stared at her at a night club and later when

complainant reported to work, she mandated complainant to work on New

Years Day, followed her to her locker and the restroom;

6. On February 8, 2002, complainant's supervisor questioned her

about an incident in which an employee alleged that complainant pushed

a General Purpose Container (GPC) in her way;

7. On February 20, 2002, complainant's scheduled work hours were

changed while co-workers were allowed to change their schedules.

By letter dated January 13, 2003, the agency dismissed claims (1)

through (6) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO

Counselor contact. Claim (7) was investigated. At the conclusion of

the investigation, complainant requested a hearing. By order dated July

19, 2004, the Administrative Judge affirmed the agency's dismissal of

claims (1) through (6) and dismissed complainant's complaint because

she, "[F]ailed to present any evidence to demonstrate that the issue

was not settled or should not be considered moot." The AJ noted that

after a grievance was filed, complainant and two co-workers were paid

out-of-schedule pay for the time they worked outside of their normal

schedules. On August 2, 2004, the agency issued a final action that

implemented the AJ's decision. Complainant appealed the agency's final

action to the Commission.

In Pacheco v. United States Postal Service, Appeal No. 01A46042 (March 3,

2006), we found that complainant's complaint was not moot. We reversed

the agency's final action and remanded claim (7) of the complaint to the

agency to issue a final order on the merits of complainant's complaint

within 60 days. On March 22, 2006, the agency issued its final decision,

finding no discrimination occurred. This appeal followed.

In its decision, the agency found that complainant failed to identify

any similarly situated employees, not in complainant's protected classes

who were treated differently than complainant was treated. Moreover,

the agency found that operational considerations motivated the agency's

decision to change the starting time for complainant and other employees

by 45 minutes.

On appeal, complainant supplies abundant evidence that her fianc� has

long been a participant in the EEO process and has opposed actions he

considers to be discriminatory. Complainant describes numerous historical

incidents where she believes she has been singled out for harassment by

supervisory officials.

ANALYSIS AND FINDINGS

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).

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).

In the instant case, we find the agency properly concluded that no

discrimination occurred as alleged. We note that again complainant

does not challenge the earlier dismissal of claims (1) through (6)

and we note that many of the historical events to which complainant

refers on appeal have been the subject of prior EEO complaints.3 We

note that the agency does not dispute that complainant has previously

engaged in the EEO process, nor does the agency dispute that complainant

has been associated with other employees engaged in the EEO process and

opposing agency actions they believe to be discriminatory. Nevertheless,

we find that the agency has articulated legitimate, non-discriminatory

reasons for changing complainant's schedule to a different starting time.

Complainant's supervisor states that she changed complainant's starting

time, and that of two other clerks to 45 minutes later in an effort

to help eliminate overtime. While complainant identified a number of

employees also in Clerk positions who did not have a schedule change,

the agency noted that they were on different sorting schemes and had

different training. We concur with the agency that complainant did not

identify any similarly situated employees, not in her protected classes,

who received preferential treatment, nor do we find evidence to show

that the change in schedule was motivated by reprisal for complainant's

own prior EEO activity or for being associated with other employees

opposing discrimination.

We therefore AFFIRM the agency's final decision, finding no

discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

September 7, 2007

__________________

Date

1 Due to a new data system, the Commission has redesignated the instant

case with the above referenced appeal number.

2 In her decision, the Administrative Judge changed the bases of

complainant's complaint from race (Hispanic), sex (female) and religion

(unspecified) to national origin (Hispanic), sex (female) and reprisal.

We note that in her prior appeal, (Pacheco v. United States Postal

Service, Appeal No. 01A46042 (March 3, 2006)), complainant did not object

to the bases identified by the AJ.

3 Complainant refers to her allegations raised in agency case number

1E-871-0059-01.

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0120062884

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120062884