0120081735
07-23-2009
Tammy L. Umbel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tammy L. Umbel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081735
Agency No. 4K220008307
DECISION
On March 4, 2008, complainant filed an appeal from the agency's February
11, 2008 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events relevant to this complaint, complainant worked
as a full-time City Letter Carrier, Q-01, at the agency's Falls Church,
Virginia Post Office.
On May 4, 2007, complainant tripped and sprained her ankle while on her
route. When an investigation was conducted into her injury, complainant
told the investigator that she was rushing, fingering the mail while
she walked, and was not paying attention. Complainant's supervisor
previously had official discussions with complainant regarding similar
safety concerns. On May 10, 2007, complainant was issued a Notice of
14-Day Paper Suspension for Unsatisfactory Performance/ Failure to Work
in a Safe Manner, which was later reduced to a Letter of Warning.
Also on May 10, 2007, complainant called her supervisor and admitted to
deviating from her route without permission. Complainant then informed
her supervisor that she had internal bleeding and would need to see
a doctor without completing her route. Complainant had previously
been issued disciplinary action for deviating from her route without
supervisory approval. As a result, complainant was issued a Notice of
Removal for Misconduct.1
On July 9, 2007, complainant was involved in a motor vehicle accident.
The record reveals that, while driving an agency vehicle, complainant
made a right turn and struck the rear end of a privately-owned vehicle.
Complainant was issued a Notice of Removal for Failure to Observe Safety
Rules and Regulations/ Failure to Drive Safely, which was later reduced
to a 7-Day Paper Suspension.
On August 30, 2007, complainant filed a formal complaint of discrimination
on the bases of race (White), sex (female), age (44), and in reprisal
for prior protected EEO activity when:
1. On May 10, 2007, she was issued a notice of 14-Day Paper Suspension
for "Unsatisfactory Performance/ Failure to Work in a Safe Manner";
2. On May 30, 2007, she was issued a Notice of Removal for Misconduct;
and
3. On July 23, 2007, she was issued a Notice of Removal for Failure to
Observe Safety Rules and Regulations/ Failure to Drive Safely.
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). 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). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged. Specifically,
the agency found that complainant failed to establish her prima facie
cases of discrimination, and failed to establish that the agency's
legitimate, non-discriminatory reasons for its actions were pretext
for discrimination. Complainant now appeals to the Commission.
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").
Consolidation
Complainant requests that this complaint be consolidated with a complaint
filed February 9, 2007, and docketed as agency number 4K-220-0031-07.2
In that complaint, complainant stated that she was discriminated against
when, on December 11, 2006, she was removed from her work schedule and
not permitted to report to work at 7:00 a.m., and on November 9, 2006,
she was issued a Notice of Removal for Misconduct, which was subsequently
reduced to a 14-Day Suspension on February 1, 2007.
EEOC Regulation 29 C.F.R. �1614.606 provides that the agency or the
Commission may consolidate two or more like or related complaints
of discrimination filed by the same complainant after appropriate
notification to the complainant. Here, the issues raised in the two
complaints are separate incidents, and are not like or related to each
other. As a result, we deny complainant's request for consolidation.
Disparate Treatment
Complainant alleges that she was subjected to discrimination based on her
race (white), age (44), sex (female), and in reprisal for prior protected
EEO activity when she was issued a notice of 14-Day Paper Suspension for
"Unsatisfactory Performance/ Failure to Work in a Safe Manner," when she
was issued a Notice of Removal for Misconduct, and when she was issued a
Notice of Removal for "Failure to Observe Safety Rules and Regulations/
Failure to Drive Safely." 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, 143 (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).
Assuming for the sake of argument that complainant established her
prima facie cases of discrimination and reprisal, the agency articulated
legitimate, non-discriminatory reasons for its actions. Specifically,
complainant was issued the May 10, 2007 14-Day Paper Suspension because
she had been counseled numerous times about working in an unsafe manner,
and she admitted to working unsafely when she was injured. Complainant
was issued the May 30, 2007 Notice of Removal because complainant
deviated from her route without supervisory permission, and she had been
disciplined in the past for deviating from her assigned duties without
supervisory approval. And finally, complainant was issued the July 23,
2007 Notice of Removal because complainant admitted to failing to look
before entering traffic.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, non-discriminatory reasons are pretext for
discrimination. Beyond complainant's bare assertions and subjective
beliefs, there is nothing in the record that would establish that
discriminatory or retaliatory animus more likely than not played a role
in the agency's decisions. As a result, we find that complainant failed
to establish that the agency's proffered legitimate, non-discriminatory
reasons are pretext for discrimination. Therefore, we AFFIRM the agency's
final decision.
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 decision, because a preponderance of the evidence of record does
not establish that discrimination occurred as alleged.
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
July 23, 2009
Date
1 The disposition of this Notice is not apparent from the record.
However, complainant remained in the agency's employ.
2 We note that, at the time complainant filed this appeal, complaint
number 4K-220-0031-07 was pending a hearing. On May 12, 2008, complainant
withdrew her request for a hearing.
??
??
??
??
2
0120081735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081735
7
0120081735