0120070538
05-27-2009
Maria Navarro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria Navarro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070538
Hearing No. 451-2006-00092X
Agency No. 4G780003206
DECISION
On November 3, 2006, complainant filed an appeal from the agency's
September 29, 2006 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales Service/ Distribution Associate at the South Texas Medical
Center Station in San Antonio, Texas. Complainant began working at
that station on August 8, 2005, pursuant to an EEO settlement agreement
that she reached with her prior management officials at another postal
facility.
On September 8, 2005, a supervisor from the Mail Services Department at
San Antonio's University of Texas Health Science Center (UTHSC) reported
to the agency that one of his employees had an "unpleasant experience"
with complainant. Specifically, complainant refused to individually scan
each piece of certified mail for UTHSC, as was the standard practice.
After complainant was told that she had to do so, she was allegedly very
rude to the UTHSC employee. The UTHSC supervisor reported that something
similar had happened with complainant and two of his other employees on
or around August 9, 2005.
On September 9, 2005, complainant's supervisor (S1) discussed with
complainant the UTHSC supervisor's allegations. On September 14, 2005,
S1 instructed complainant to close her window, turn in her money, keys,
and badge, and to clock out. S1 walked complainant out the door and
observed complainant until she drove off the premises.
Subsequently, complainant was placed on administrative leave. On November
18, 2005, complainant received a Notice of Removal, charging her with
continued unacceptable work performance and continued inappropriate
conduct towards agency customers.
The agency asserted that complainant's removal was in line with
progressive discipline, as her current disciplinary record revealed
similar past disciplinary issues. For example, on December 1, 2004,
complainant was issued a Notice of Removal that was subsequently
reduced to a 30-day suspension for continued unacceptable work
performance and continued inappropriate conduct towards customers.
On October 20, 2004, complainant was issued a 14-day suspension for
unacceptable and inappropriate conduct towards customers. On September
11, 2004, complainant was issued a 7-day suspension for unacceptable
work performance conduct. On January 22, 2004, complainant was issued
a letter of warning for unacceptable attendance and failure to maintain
a regular work schedule. And on October 9, 2003, complainant was issued
a letter of warning for unacceptable conduct.
On January 18, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Hispanic), disability
(cervical fusion surgery), and in reprisal for prior protected EEO
activity when:
1. On September 14, 2005, she was placed off the clock and walked out
of the station; and
2. On November 19, 2005, she received a Notice of Removal based on
continued unacceptable work performance, and continued inappropriate
conduct towards agency customers.
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). Complainant timely
requested a hearing and the AJ held a hearing on September 1, 2006
and issued a bench decision on September 5, 2006. The AJ found
that complainant failed to establish her prima facie cases of race,
disability, and reprisal discrimination. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Here, we do not find adequate reason to overturn the AJ's credibility
determinations.
Complainant alleged that she was discriminated against on the bases
of race, disability, and in reprisal for prior protected activity
when she was placed off the clock and escorted out of the building,
and when she was issued a Notice of Removal. A claim of disparate
treatment such as this is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
For complainant to prevail, she must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, management officials escorted complainant
out of the building and subsequently issued her a Notice of Removal
because she continuously acted inappropriately towards customers and
had an unsatisfactory work performance.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons were pretext
for discrimination. Complainant asserted that she was never told
that her job performance was unsatisfactory, and management officials
encouraged the customers to make up the allegations against her. The AJ
found complainant to be "absolutely not credible" because she stated in
her affidavit that she had never been subjected to disciplinary action
in the past, when she had a lengthy history of disciplinary action.
Further, complainant stated that she had never been confronted about
performance issues, when the record established that complainant
had been confronted about performance issues on numerous occasions.
We agree with the AJ that a preponderance of the evidence of the record
supports the agency's articulation that complainant repeatedly acted
inappropriately towards customers and was repeatedly informed that her
performance was not satisfactory. Additionally, the record establishes
that complainant had a lengthy disciplinary history for similar issues,
and the removal was in line with progressive discipline.1 The record is
devoid of evidence that would suggest that a discriminatory or retaliatory
animus more likely than not motivated the agency's actions. Therefore,
we find that discrimination or retaliation did not occur as alleged.
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 order.
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
3. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
4.
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
May 27, 2009
Date
1 At the hearing, complainant provided a document which she asserts is
an agreement entered into between herself and an agency official in which
they agreed that the 30-day suspension issued to complaint on December 1,
2004, would be expunged from complainant's record. Complainant asserts
that, accordingly, reliance on the 30-day suspension was inappropriate
for issuing progressive discipline. The agency denied entering into
this agreement. The AJ determined that this document raised numerous
authenticity questions because the official whose signature was on the
document denied signing or preparing the document, and numerous Union
officials testified that the document was "unusual," "puzzling," and
unlike their normal documents because it only contained the signature
line of the agency official and not complainant, and the document did
not reference a grievance or complaint number. Further, the document
referenced that the Notice of Removal was reduced to a 30-day suspension,
even though the Notice of Removal had not yet been reduced to a 30-day
suspension as of the date of the document. As a result, the AJ decided to
not give the document evidentiary weight. After reviewing the record,
we agree with the AJ that the document raises numerous questions of
authenticity, and as a result, no evidentiary weight should be given to
the document.
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0120070538
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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