0120120045
02-20-2013
Gloria Oliphant-Isles, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Gloria Oliphant-Isles,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120120045
Hearing No. 430-2010-00149X
Agency No. 4K-280-0124-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 31, 2011 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.
At the time of events giving rise to this complaint, Complainant worked as a Casual Clerk at the Agency's Yorkmont Station in Charlotte, North Carolina. Casual employees are non-career employees with limited term appointments and are used to supplement the work force. Complainant's First Level Supervisor was the Supervisor of Customer Service Operations (S1 - African-American, female). Complainant's Second Level Supervisor was the Acting Manager (S2 - Caucasian, male). On September 3, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity (May 28, 2009 EEO Counselor contact) when: (1) from April 2009 through May 2009, she worked approximately 44 hours "off the clock" at management's request and was not paid; and (2) on various dates from June 2009 through September 2009, management cut her hours.1
After a July 14, 2011 hearing, an EEOC Administrative Judge (AJ) issued a decision concluding that Complainant failed to prove that the Agency discriminated against her as alleged.
Regarding claim 1, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, S1 testified that she never ordered Complainant to work "off the clock." The AJ determined that S1's testimony on that issue was not credible and found that S1 had ordered Complainant to work "off the clock."2 The AJ, however, found that S1 had done so for a reason - in order to stay within her budgeted clerk hours - that was unrelated to race, sex, or reprisal discrimination. In so finding, the AJ stated that the evidence showed that S1 was a new supervisor and was under pressure to ensure that clerk operations were performed within the budgeted hours. In addition, the AJ stated that Complainant had identified other non-career employees who worked "off the clock," including a Caucasian male employee. Finally, the AJ stated that Complainant only worked "off the clock" one time after her May 28, 2009 EEO Counselor contact and there was no evidence that S1 was aware of Complainant's protected activity at that time.
Regarding claim 2, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, S1 and S2 testified that they reduced Complainant's work hours because the change in the facility's hours of operations led to a reduction in clerk hours and they had to cut the hours of casual clerks before those of career clerks. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's explanation was a pretext for race, sex, or reprisal discrimination. Although Complainant identified two employees whose work hours were not cut, the AJ found that they were not similarly situated to Complainant because they were career employees. The AJ acknowledged the temporal proximity between Complainant's protected activity and the decrease in her work hours, but found no evidence that the Agency's explanation was pretextual.
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. Nat'l Labor Relations Bd., 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 EEO MD-110, Ch. 9, � VI.B.
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of race, sex, and reprisal.
Regarding claim 1, we agree with the AJ that Complainant has failed to show that S1's articulated reason, even if not the real reason, was a pretext for race, sex, or reprisal discrimination. On appeal, Complainant argued that management falsified their testimony and acted unethically by asking her to work "off the clock" on several occasions. We note that the AJ explicitly determined that, contrary to S1's own testimony, S1 had asked Complainant to work "off the clock." This, however, does not inevitably lead to a finding of discrimination. Rejection of the agency's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). However, a reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason. See id. at 515. Here, Complainant has not shown that her race, sex, or prior EEO activity, rather than S1's desire to stay within the budgeted clerk hours, was the reason that S1 ordered her to work "off the clock."
Regarding claim 2, we agree with the AJ that Complainant has failed to show that management's articulated reason for reducing her hours was a pretext for race, sex, or reprisal discrimination. On appeal, Complainant argued that management retaliated against her after she contacted a Labor Relations Specialist (LRS) on May 28, 2009 about timekeeping issues. As evidence of management's retaliatory motive, Complainant cited the following: (a) S1 told her that S2 never forgets when someone has wronged him; and (b) S2 testified that he was angry3 when he became aware that she had contacted LRS. Even if S2 was displeased that Complainant had contacted LRS about timekeeping issues, Complainant has not shown that management's explanation for reducing her hours was a pretext for race, sex, or reprisal discrimination.
Finally, Complainant argued on appeal that the Agency mistreated her because she was a casual employee. Even if true, we note that Complainant's classification as a casual employee is not related to her race, sex, or prior EEO activity, and is not a basis covered by the EEO statutes. See 29 C.F.R. � 1614.103(a) (EEO statutes prohibit discrimination on the bases of race, color, religion, sex, national origin, age, disability, and genetic information).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by substantial evidence in the record.
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
___2/20/13_______________
Date
1 In her complaint, Complainant also alleged that management changed her clock rings on four occasions in May 2009 to add a lunch break that she did not take. The Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that Complainant was not an "aggrieved employee" because management had processed a pay adjustment request on June 17, 2009 to correct her pay. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A. (Nov. 9, 1999). As Complainant did not specifically raise the dismissal of this claim on appeal, we exercise our discretion to not address this matter in our decision.
2 The AJ did not find Complainant's testimony credible as it related to the number of times and number of hours she worked "off the clock." The AJ noted that Complainant alleged during EEO Counseling that she had not been paid for 14 or 15 hours, but increased the number to 44 hours during the EEO Investigation.
3 We note that Complainant seems to have mischaracterized S2's testimony. According to the hearing transcript, S2 testified that he was "annoyed" when Complainant went over his head and contacted LRS.
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0120120045
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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