Ollie Smith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionNov 5, 2009
0120073064 (E.E.O.C. Nov. 5, 2009)

0120073064

11-05-2009

Ollie Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Ollie Smith,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 0120073064

Hearing No. 443-07-00063X

Agency No. 1J-531-0111-06

DECISION

On June 25, 2007, complainant filed an appeal from the agency's June 6,

2007 final decision concerning her equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of 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 decision.

ISSUE PRESENTED

Whether the agency properly found that complainant was not subjected to

discrimination based on age when she was terminated.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a Casual Mail Handler at an agency's facility in Oak Creek,

Wisconsin. The record reflects that on August 12, 2006, complainant's

supervisor, the Supervisor, Distribution Operations (SDO), instructed

her to work overtime after her tour had ended. Complainant did not work

overtime as directed, and she left the premises without permission.

On August 13, 2006, complainant was terminated for failure to follow

instructions. In November 2006, complainant filed an EEO complaint

alleging that she was discriminated against on the basis of age (53

years old at the time of the alleged incident) when, on August 13, 2006,

she was terminated.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and a notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing but subsequently withdrew her request. Consequently,

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

The decision concluded that complainant failed to prove that she was

subjected to age discrimination as alleged. Specifically, the agency's

decision found that complainant failed to establish a prima facie case

of age discrimination and that she failed to establish that the agency's

legitimate, nondiscriminatory reason for her termination was a pretext

for unlawful discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant states that she "should have filed a religion EEO

[sic]. I apologize for the age thing." She states that the SDO ordered

her to work overtime on August 12, 2006, and she informed him at that

time that she could not do so because she was going to church the next

morning. However, she further states that she does not believe that the

SDO heard her when she indicated to him that she could not work overtime.

She also states that the SDO "thought he owned me to work overtime."

In response, the agency urges the Commission to affirm the agency's final

decision. The agency argues that complainant is prohibited from raising

a claim of discrimination based on religion for the first time on appeal.

The agency also argues that complainant failed to establish a prima facie

case of age discrimination and that she failed to establish pretext.

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, 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 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).

Assuming arguendo that complainant established a prima facie case

of discrimination based on age, we find that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The SDO submitted

an affidavit into the record stating that complainant was terminated

for failure to comply with his instructions. According to the SDO,

complainant failed to work overtime as directed, and she left work while

on duty without permission.

Complainant now bears the burden of proving by a preponderance of

the evidence that the agency's articulated reason for its action

was a pretext for discrimination. Upon review, we concur with the

agency's determination that complainant failed to establish pretext.

Complainant stated in her own affidavit that SDO was unaware of her age,

and that she did not believe age was a factor in the SDO's decision to

terminate her employment. On appeal, she again indicated that her age

played no role and that the SDO may not have heard her when she stated

that she could not work overtime.

It is not clear whether complainant, on appeal, is attempting to raise

religion as a basis of discrimination in this case or simply informing

the Commission what she feels she should have alleged originally.

Nevertheless, we note that complainant had ample opportunity to

allege that she was discriminated against due to her religion, but

she only alleged discrimination based on age during EEO counseling,

in her formal complaint, and during the investigation of her complaint.

Moreover, even assuming arquendo that she had raised religion as a basis

of discrimination, our decision finding no discrimination would remain

the same. The record is devoid of any evidence that the agency's action

was motivated by discriminatory animus of any kind. Complainant herself

has stated several times that she does not believe that the SDO even heard

her when she indicated that she did not want to work overtime. Thus,

we find no reason to conclude that he heard her say that she wanted to

go to church the next day. Accordingly, we find no persuasive evidence

that would raise an inference of discrimination based on complainant's

religion.1

CONCLUSION

Accordingly, based on our thorough review of the record, the Commission

determines that the agency's final decision finding no discrimination

was proper and is AFFIRMED.

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

____11/05/09______________

Date

1 Based on the facts presented above, we do not read complainant's

assertion on appeal as a claim that she was denied a religious

accommodation.

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0120073064

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073064