Iris E. Calloway, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 19, 2009
0120091313 (E.E.O.C. Aug. 19, 2009)

0120091313

08-19-2009

Iris E. Calloway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Iris E. Calloway,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091313

Agency No. 4K200008508

DECISION

On January 30, 2009, complainant filed an appeal from the agency's 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 timely1 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 all times relevant to this complaint, complainant was in her

probationary period and worked as a Transitional City Carrier at the

Hyattsville, Maryland Post Office.

On May 13, 2008, complainant was given a pre-disciplinary interview by

her supervisor for incidents alleged to have occurred on May 12, 2008.

Specifically, complainant was accused of the intentional delay of

certified mail, falsification of delivery records, failure to follow

instructions by failing to call when not returning by 6:00 pm, and

bringing back parcels for two days as "not attempted" and "undeliverable."

Complainant stated that she returned with the packages because she was on

a new, longer route with many similar street names, and it was difficult

for her to find the correct streets for delivery. Complainant further

alleged that she had been instructed to return before night-fall for

safety reasons, which she did.

On May 19, 2008, complainant met with her supervisor and her manager

to discuss the incidents on May 12, 2008, and her reassignment to the

Calvert Annex. Complainant asserts that the manager became agitated and

aggressive, intimidated her, and used obscene language that ultimately

made her cry. Complainant asserts that the manager then shouted at the

top of his voice that she was terminated, that she should turn in her

badge and leave the facility immediately, and that she should not come

back to pick up her check. The manager and supervisor assert that the

manager only threatened to terminate her if she failed to follow his

instructions, and that complainant responded that he could not fire her

because she was resigning. Additionally, both the manager and supervisor

deny that the manager raised his voice or used obscene language.

That same day, complainant received a phone call from her union

representative who told her that she was not fired and that her job

was still hers. Additionally, her supervisor called her and told her

that she should report to work at the Calvert Annex and should begin her

assignment there on May 30, 2008. Complainant failed to report to work

on May 30, 2008.

On June 4, 2008, complainant received a Letter of Separation from her

supervisor, effective May 30, 2008, for failure to report to work as

scheduled on May 30, 2008. In a letter dated June 6, 2008, complainant

stated that she was aware that she was advised to return to work, but

she had concerns about the work environment and her supervisors.

On May 13, 2008, complainant filed a formal EEO complaint of

discrimination on the bases of race (Hispanic2), sex (female), national

origin (Hispanic), and in reprisal for prior protected EEO activity when:

1. On February 29, 2008, her manager hollered at her and slammed his

fist on his desk; and

2. On May 19, 2008, her manager used aggressive, intimidating, and obscene

language toward her, then verbally terminated her and told her to leave

the facility.

On May 27, 2008, the agency dismissed complainant's claim 1 for failure

to state a claim. Specifically, the agency found that complainant

failed to establish that she suffered a harm or loss with respect to a

term, condition, or privilege of employment for which there is a remedy.

Complainant's remaining claim was investigated, and 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 decision concluded that complainant failed to prove that she was

subjected to discrimination as alleged. Complainant now appeals that

decision to the Commission.

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").

Dismissal

The regulation set forth in 29 C.F.R. � 1614.107(a)(1) provides that

an agency shall dismiss a complaint that fails to state a claim.

Moreover, the agency shall accept a complaint from any aggrieved

employee or applicant who believes that he or she has been discriminated

against because of race, color, religion, sex, national origin, age, or

disability. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal

sector case precedent has long defined an aggrieved employee as one who

suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,

the United States Supreme Court has ruled that an aggrieved employee

is one who has suffered a loss with respect to a term, condition, or

privilege of employment. Trafficante v. Metropolitan Life Insurance,

Co., 409 U.S. 205 (1972). The Commission finds that complainant failed

to establish that the manager's alleged hollering and slamming his fist

on his desk created a loss or altered a term, condition, or privilege

of employment. Therefore, we affirm the dismissal of claim 1.

Disparate Treatment

Complainant alleges that she was disparately treated when her manager

used aggressive, intimidating, and obscene language toward her, then

verbally terminated her and told her to leave the facility. 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). She must generally

establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with in

this case, however, because the agency has articulated legitimate and

non-discriminatory reasons for its conduct. See United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is a

pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519

(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

256 (1981); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy,

EEOC Request No. 05950351 (December 14, 1995). Here, we will assume

without so finding that complainant established her prima facie cases

of discrimination.

The agency must now articulate a legitimate, non-discriminatory reason

for its actions. The agency asserts that complainant was not fired

during the meeting on May 19, 2008, but was fired for failure to report

to work on May 30, 2008. Further, both the manager and the supervisor

deny complainant's allegations that the manager yelled at her, intimated

her, or used obscene language.

Complainant must now establish that the agency's legitimate,

non-discriminatory reasons are pretext for discrimination. The record

supports the agency's assertion that complainant was not terminated until

she failed to report to work on her scheduled day. This termination is

in line with agency policy, as evidenced by a Memorandum of Understanding

between the agency and the union, which states that transitional employees

may be separated at any time for just cause, and that transitional

employees are expected to maintain their assigned schedules and must make

every effort to avoid unscheduled absences. While there are conflicting

accounts between complainant and management officials regarding the

events that transpired on May 19, 2008, the record does not establish

that discriminatory or retaliatory animus more likely than not played a

role in the agency's actions, nor is there a dispute that complainant did

not report to duty as directed on May 30, 2008. Therefore, we find that

complainant failed to establish that the agency's articulated legitimate,

non-discriminatory reasons were pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final decision because a preponderance of the evidence of record does

not establish that discrimination occurred as alleged.

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

August 19, 2009

Date

1 We note that the agency failed to establish the date that complainant's

attorney received the agency's final decision, and as such, we deem this

appeal timely. See 29 C.F.R. � 1614.402(b).

2 We note that under the laws enforced by the Commission, the term

"Hispanic" denotes only a national origin.

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0120091313

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091313

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