0120111084
03-21-2012
Mary N. Taylor, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mary N. Taylor,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111084
Agency No. 4H-390-0032-10
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 2, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales, Services/Distribution Associate (SSDA) at the Agency’s
Olive Branch Post Office in Olive Branch, Mississippi. On May 7,
2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when: on February 9, 2010, her position duties were
changed after she was awarded the position.
The record reflects that two new clerk positions were created and
vacancy notices were posted on January 19, 2010. Complainant bid on
and was awarded the position of SSA/Distribution Clerk, Level 6, off
days Sundays/Thursdays, with hours of 8:30 a.m. until 6:30 p.m. and
two hours for lunch. Complainant described the duties on the vacancy
announcement as "Distribution and Window Clerk; performs a combination
of the basic functions of a distribution clerk and window clerk."
It also noted that the principle assignment was as an SSA Clerk and
the job included "other duties as assigned." Complainant noted that
she was awarded the new position on February 9, 2010, and it became
effective on February 13, 2010. Complainant contended, however, that,
immediately after the position was awarded, management specified on a
routing slip, dated February 9, 2010, explicit duties and assignments
for the position. Complainant claimed that management should have put
the explicit duties and assignments on the Form 1716 (the Notice of
Vacancy) so that the bidder could have known specifically what they
were bidding on. According to the routing slip, Complainant was to
prepare the dispatch at 3:00 p.m. weekdays (1:00 p.m. on Saturdays).
Complainant alleged that the dispatch duties were a change from the
duties listed on the vacancy announcement.
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. When Complainant did
not request a hearing within the time frame provided in 29 C.F.R. §
1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. §
1614.110(b).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie case,
management had recited legitimate, nondiscriminatory reasons for its
actions. Specifically, the Postmaster stated that the bid posting was
clear that the position would be an SSA/Distribution Clerk with other
duties as assigned. She noted that nothing was changed after the posting
and awarding of the position to Complainant. The Postmaster maintained
that dispatching of mail was considered a part of distribution and those
duties were assigned to the Complainant based on the hours of work that
were clearly posted on the PS Form 1716 that she voluntarily bid on.
The Postmaster noted that the window operation closed at 5:30 p.m.,
but this bid was posted with hours of 8:30 a.m. 6:30 p.m. She explained
that at no time did Complainant ask her about the duties that would be
assigned to her after the window closed at 5:30 p.m. The Postmaster
noted that it would be obvious to most employees that, if the posting
indicated an end tour of 6:30 p.m., dispatch duties would be included
because there were no other distributions of mail or any other duties
performed from 5:30 p.m. when the window closed until 6:30 p.m. She noted
that all employees were required to be gainfully employed and dispatch
duties had to be performed to advance the collection mail to the plant
for processing. The Postmaster asserted that this was a Clerk function,
not a management function. Therefore, Complainant was assigned duties
based on the hours of work posted. She also noted that the announcement
was posted for 10 days, and Complainant had the opportunity to discuss
what duties were to be assigned between 5:30 p.m. and 6:30 p.m. with
her (the Postmaster) or the supervisor to gain further knowledge of
the bid position if she was unsure what other duties would be assigned.
The Postmaster noted that Complainant did not inquire to her; therefore,
she had no reason to believe that it was an issue.
The Postmaster emphasized that Complainant's duties were not revised, but
the specific duties of dispatch were not listed on the posting because
it was not required. She noted that management was only required to
list the principle assignment, which was the SSA/Distribution Clerk.
She averred that "other duties as assigned" was also on the posting and
covered any other duties management deemed necessary.
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”).
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, 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).
Complainant proffers no statement on appeal. Complainant has not
produced evidence to show that the Agency’s explanations are a pretext
for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 21, 2012
__________________
Date
2
0120111084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111084