Joan O. Payne, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120092064 (E.E.O.C. Aug. 27, 2009)

0120092064

08-27-2009

Joan O. Payne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joan O. Payne,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092064

Agency No. 4C440019708

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's March 18, 2009 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Complainant alleged that the agency discriminated against

her on the bases of sex (female) and age (48) when on June 18, 2008,

she was issued a Notice of Suspension of 14 days or less.

At all times relevant to the issue in this complaint; the complainant

was employed as a City Carrier at the agency's Cranwood Station in

Cleveland, OH. The record indicates that on June 18, 2008, complainant

was assigned to deliver mail at an apartment complex and advised agency

officials that she had no "arrow key" in order to do so. Complainant's

supervisor advised complainant that someone would come to bring one

to her. However, the record indicates that complainant returned to the

post office later that day having not completed her route assignment in

possession of undelivered mail. Complainant avers that she called in to

the post office and advised that no one ever brought her an "arrow key,"

therefore she was unable to complete her route. Complainant also alleges

that she called in to her union steward and advised that she could not

deliver the mail. However the agency indicates that complainant never

contacted her supervisor regarding not receiving the arrow key and not

being able to deliver the mail. The record further indicates that

once complainant returned to the station with the undelivered mail,

she refused to go back out to make the deliveries despite the fact

that she was on the overtime desired list. Consequently, the agency

issued complainant a 14-day suspension for failure to follow agency

policy which requires employees to notify agency officials of problems

in delivering mail. In addition, agency policy prohibits carriers from

bringing back undelivered mail without prior approval.

At the conclusion of the investigation, complainant was informed

of the right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to respond within the time period specified in

29 C.F.R. � 1614.108 (f), the agency issued a final decision.

In its FAD, the agency found that complainant failed to establish a prima

facie case of sex or age discrimination as alleged. The agency further

determined that even assuming arguendo that complainant established a

prima facie case, the agency proffered legitimate non-discriminatory

reasons for its actions, and that complainant failed to establish that

the agency's reason was a pretext for discrimination. Complainant

failed to provide arguments or evidence in support of her appeal to

the Commission.

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). He

must generally establish a prima facie case by demonstrating that

he 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, since the agency has articulated

legitimate and nondiscriminatory 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. 133, 120 S.Ct. 2097 (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).

The Commission determines that the agency established a legitimate

non-discriminatory reason for complainant's 14-day suspension.

Specifically, the agency found that complainant failed to follow

established policy regarding phoning an agency official regarding problems

delivering mail on her route. In addition, complainant failed to follow

proper procedure by returning to the station with undelivered mail

without prior approval. Finally, the agency indicates that complainant

was issued a 14-day suspension1 for refusing to go back out on her

route to deliver the mail. The Commission finds that complainant

failed to present evidence that more likely than not, the agency's

articulated reasons for its actions were a pretext for discrimination.

Complainant has failed to demonstrate that the suspension was based on

any discriminatory animus toward complainant's sex or age.

Therefore, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we affirm the

agency's finding of no discrimination.

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 27, 2009

__________________

Date

1 The record notes that the 14-day suspension was reduced to a Letter

of Warning through the agency's negotiated grievance procedure.

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0120092064

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092064