0120080654
10-08-2009
Valerie J. Romo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Valerie J. Romo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080654
Hearing No. 480-2007-00484X
Agency No. 1F-908-0010-06
DECISION
On November 19, 2007, complainant filed an appeal from the agency's
October 15, 2007 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 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 her national origin, sex, age, and in reprisal
for prior protected EEO activity.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processing Clerk at the agency's Processing and
Distribution Center in Long Beach, California. The record reflects
that on or around January 10, 2005, complainant was a passenger in a
vehicle stopped by local police officers. The officers observed, in
plain view, various items in the vehicle used to commit identity theft.
Complainant was subsequently arrested and charged with conspiracy to
commit identity theft.
Complainant was incarcerated from January 11, 2005 through January 26,
2005, when she was released on bail. When she attempted to return to
work on January 31, 2005, she was placed on emergency suspension until
her case was resolved and/or she was cleared of all charges.1 On July 1,
2005, she was issued a Notice of Indefinite Suspension-Crime Situation
because there was "reasonable cause to believe [she was] guilty of a
crime for which a sentence of imprisonment [could] be imposed."
Complainant and several other individuals were tried before a jury in
July 2005. Complainant was ultimately found guilty of a felony for
"conspiracy to commit any crime." In September 2005, she was sentenced
to serve two years of imprisonment. On December 29, 2005, she was issued
a Notice of Removal for Failure to Report for Duty as Scheduled - Absent
Without Leave (AWOL).2
On May 11, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of national origin (Hispanic),
sex (female), age (40 years old at the time of the incidents), and in
reprisal for prior protected EEO activity arising under Title VII when:
(1) On July 1, 2005, she was issued a Notice of indefinite
Suspension-Crime Situation; and
(2) On December 29, 2005, she received a Notice of Removal for "Failure
to Report for Duty as Scheduled - AWOL, effective January 29, 2006.
The agency initially dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for failure to state a claim upon which relief may be
granted. Romo v. United States Postal Service, Agency No. 1F-908-0010-06
(June 5, 2006). On appeal, the Commission reversed the agency's final
decision and remanded the case to the agency for further processing
in accordance with 29 C.F.R. � 1614.108. Romo v. United States Postal
Service, EEOC Appeal No. 0120064069 (January 9, 2007).
On remand, 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), finding no discrimination. Specifically,
the agency's decision found that complainant failed to establish a prima
facie case of discrimination and that she failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were a
pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. She argues that two similarly situated comparators
outside her protected classes were given preferential treatment by
management officials. She further argues that the record evidence
establishes that the agency's reasons for its actions, including
terminating her due to her AWOL status, were a pretext for discrimination.
She notes that after, she won an arbitration decision rescinding her
Notice of Removal in July 2007, she was issued a second Notice of Removal
in October 2007 for unacceptable conduct/conviction of a crime (felony)
resulting in her incarceration in state prison that is the subject of
a separate EEO complaint and unrelated to the instant appeal.3
In response, the agency urges the Commission to affirm its final decision.
The agency argues that complainant failed to establish a prima facie case
of discrimination because she failed to identify any similarly situated
individuals outside her protected classes that were given preferential
treatment. The agency also argues 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 national origin, sex, age, and in
reprisal for prior protected EEO activity, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The Manager Distribution Operations (MDO) submitted an affidavit into
the record stating that he issued complainant a Notice of Indefinite
Suspension-Crime Situation due the fact that "the alleged crime involved
mail and her position as a Registry Clerk handling accountable mail."
A second Manager Distribution Operations (MDO2) similarly stated in her
affidavit that complainant was placed on indefinite suspension "based
on her felony arrest January 10, 2005." The Plant Manager submitted a
statement indicating that placing complainant on indefinite suspension
"was necessary in that keeping her at work might result in the loss of
mail or funds."
MDO stated that complainant was issued a Notice of Removal "due to
her being found guilty of a crime and her [AWOL]." MDO2 stated that
complainant was issued the Notice of Removal "based on the fact that that
the complainant was found guilty of the felony charge [of] conspiracy to
commit a crime and could serve up to [two] years in prison." MDO2 and
the Plant Manager noted that all employees who are in prison are carried
in an AWOL status during their incarceration.
Complainant now bears the burden of proving by a preponderance of the
evidence that the agency's articulated reasons for its actions were a
pretext for discrimination. Upon review, we concur with the agency's
determination that complainant failed to establish pretext. The record
is devoid of any evidence that the agency's actions were motivated by
discriminatory animus. Although complainant identified two comparators on
appeal that she said were not terminated after being accused or convicted
of criminal activity, there is no evidence in the record that these
individuals were similarly situated employees. The identified comparators
were not arrested and convicted for conspiracy to commit identity theft,
and there is no evidence in the record that they were supervised by the
same management officials. We note that Article 16.6 of the collective
bargaining agreement between the agency and the Union states that "[t]he
[e]mployer may indefinitely suspend an employee in those cases where the
[e]mployer has reasonable cause to believe an employee is guilty of a
crime for which a sentence of imprisonment can be imposed." We further
note that Section 665.41 of the agency's Employee Labor Manual states
that "[e]mployees are required to be regular in attendance. Failure to
be in regular attendance may result in disciplinary action, including
removal from the [agency]."
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
______10/08/09____________
Date
1 Complainant filed a grievance regarding the January 31, 2005 suspension,
and the parties signed a settlement agreement resolving the matter in
July 2005.
2 Complainant filed a grievance regarding the December 29, 2005 Notice of
Removal. On July 30, 2007, an arbitration decision was issued rescinding
the Notice of Removal, finding that management had placed complainant
on indefinite suspension during the relevant time period rather than in
AWOL status. The decision found that management failed to correct its
Notice of Removal to charge complainant with AWOL during her post-trial
incarceration and only charged her with AWOL for the period from January
11, 2005 through January 26, 2005. As a result, the arbitration decision
determined that complainant could only be disciplined for being AWOL
from January 11, 2005 through January 26, 2005, and the appropriate
discipline was determined to be a thirty (30) day suspension.
3 The Commission has no record of an appeal filed by complainant regarding
the second notice of removal.
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0120080654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080654