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