0120082494
09-04-2009
Marie McMillon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Marie McMillon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120082494
Hearing No. 490-2007-00179X
Agency No. 4G-770-0252-07
DECISION
On May 5, 2008, complainant filed an appeal from the agency's April
2, 2008 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the Administrative Judge's (AJ)
conclusion that the agency did not subject complainant to discrimination
on the bases of age, race, and reprisal when it sent her to training.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a distribution, window, and mark-up clerk at the agency's North Shepherd
Postal facility in Houston, Texas. On May 23, 2007, complainant filed an
EEO complaint alleging that she was discriminated against on the bases
of race (black), age (over 40 years old), and in reprisal for prior
protected EEO activity when management sent her to training so that
window duties could be added to her bid position. 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 February 22, 2008.
At the hearing, complainant testified that on April 16, 2007, she
observed a clerk working the window alone. Complainant stated that
she tried to assist the clerk and stated that it must be stressful
to work the window by herself, and that was unfair to customers.
Complainant stated that the Manager of Customer Services then came
to her and stated in a sarcastic manner that "we can remedy that."
Hearing Transcript, p. 16. She testified that the Manager of Customer
Services stated that she was adding window duties to complainant's bid
and sending her to training. Complainant stated that she subsequently
received a letter stating that she must attend "Sales and Service Retail
Training." Complainant testified that she was sent to training during a
time that was inconvenient because she was caring for her sick husband.
Complainant further testified that window duties were part of her bid
assignment, but she had not performed window duties since 1999 or 2000.
The Manager of Customer Services testified that complainant stated that
management at North Shepherd did not know how to operate the facility.
The Manager stated that she told complainant, "Well, Ms. McMillon,
you [are] a window clerk; so what we do, we'll just, you know, put
you on the window to exercise your bid." Hearing Transcript, p. 70.
The Manager further testified that complainant maintained that she had
not worked on the window for a while and needed to be trained to perform
those duties. The Manager testified that she responded, "Well, that's
no problem. We'll send you to training." Id. The Manager stated that
she scheduled complainant for training.
In a decision dated March 21, 2008, the AJ found no discrimination
because complainant failed to establish a prima facie case of age, race,
or reprisal discrimination. The AJ further concluded that the Manager
of Customer Services credibly testified that complainant was the "most
voiceful" employee at the facility and always provided negative input
about management. The AJ determined that there was no evidence that any
similarly situated employee, outside of complainant's protected groups,
made similar complaints and was treated more favorably than complainant
under similar circumstances. The agency subsequently issued a final
order adopting the AJ's findings.
CONTENTIONS ON APPEAL
In a one page appellate statement, complainant contends that the AJ
erroneously concluded that she was the only person to complain about the
Manager of Customer Services. Complainant maintains that most employees
at the facility signed petitions to remove the Manager of Customer
Services, and many employees filed EEO complaints against the Manager of
Customer Services. The agency requests that we affirm its final order.
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.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
In this case, complainant contends that the agency retaliated against her
because she made statements about the staffing of the window. However,
complainant's statements did not involve allegations of discrimination on
a protected EEO basis. There is also no evidence complainant previously
engaged in EEO activity. Thus, we find that complainant failed to
establish a prima facie case of reprisal.
Assuming arguendo that complainant established a prima facie case
of race and age discrimination, we nonetheless find that the agency
provided legitimate, non-discriminatory reasons for sending complainant
to training. Specifically, management testified that it sent complainant
to training because complainant stated that management did not know
how to operate the facility, complainant maintained that she needed
training in order to perform window duties, and window duties were
part of complainant's bid. Complainant contends that she was not
the only employee to complain about the Manager of Customer Services
because other employees signed petitions and filed complaints against
the Manager. However, there is no evidence that other employees verbally
criticized the Manager of Customer Services or management in the manner
in which complainant criticized management. We find it reasonable that
management would send complainant to training that could alleviate the
very problem that complainant brought to the attention of management.
Complainant failed to prove that the agency's explanations were pretext
for unlawful discrimination. Thus, we concluded that substantial evidence
supports the AJ's finding of no discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record, the Commission
affirms 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
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
_______9-04-09___________
Date
2
0120082494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120082494