Vivian R. Niedzinski, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 20, 2009
0120091594 (E.E.O.C. Aug. 20, 2009)

0120091594

08-20-2009

Vivian R. Niedzinski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Vivian R. Niedzinski,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091594

Agency No. 1B-016-0006-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's January 30, 2009 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.

During the period at issue, complainant was employed as a Mail Handler

Equipment Operator, PS-05, at the agency's Central Mass Processing &

Distribution Center in Shrewsbury, Massachusetts.

On August 26, 2008, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against her on

the bases of sex (female) and in reprisal for prior EEO activity when:

(1) on April 16, 2008, her tow motor license was revoked;

(2) on April 24, 2008, she was issued a 7-day suspension; and

(3) on May 21, 2008, she was issued a 14-day suspension.

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). In accordance with

complainant's request, the agency issued a final decision on January 26,

2009, pursuant to 29 C.F.R. � 1614.110(b).

In its January 30, 2009 final decision, the agency found no

discrimination. Specifically, the agency found that complainant did not

establish a prima facie case of sex discrimination because she failed

to identify any similarly situated individuals not in complainant's

protected class who were treated differently under similar circumstances.

The agency further found that complainant did not establish a prima facie

case of reprisal discrimination because she failed to establish a casual

connection between her prior protected activity and the actions at issue.

The agency further found that assuming, for the sake of argument,

that complainant established a prima facie case of sex and reprisal

discrimination, management articulated legitimate, nondiscriminatory

reasons for its actions which complainant failed to show were a pretext

for discrimination.

Regarding claim (1), the Manager Distribution Operations (MDO) stated

that he was the deciding official to revoke complainant's tow motor

license on April 16, 2008. Specifically, MDO stated that complainant

"drove her tow motor into a restricted area and hit a flat rack causing

it to tip over onto an employee, causing injury to same employee."

MDO stated that following an investigation of the accident, he made

a determination that complainant was driving in an "unsafe manner in

a restricted area. Employees found to be driving in an unsafe manner

routinely have their licenses revoked." MDO further stated that he told

complainant on several occasions not to drive in the restricted area of

the flat cases. MDO stated that during the pre-disciplinary interview,

complainant "admitted that she had driven into the area after being told

not to." MDO stated that during the relevant period, he was not aware

of complainant's prior protected activity. Moreover, MDO stated that

complainant's sex and prior protected activity were not factors in his

determination to revoke her tow motor license.

Regarding claim (2), complainant's supervisor (S1) stated that on April

24, 2008, she issued complainant a 7-day suspension for failure to

follow instructions and working in an unsafe manner on April 16, 2008.

S1 further stated that the equipment complainant "was towing behind her

hit a piece of rolling equipment which hit the flat rack that tipped

over onto an employee." S1 stated that during the relevant time, she

was not aware of complainant's prior protected activity. S1 stated that

complainant's sex was not a factor in her determination to issue her a

7-day suspension relating to the April 16, 2008 incident. Specifically,

S1 stated her decision was based on the fact that complainant "disregarded

instructions not to drive in the restricted area of the flats and [named

employee] got hurt as a result."

Regarding claim (3), the Supervisor Customer Service (SCS) stated that on

May 21, 2008, he issued complainant a 14-day suspension for failure to

follow instructions on May 8, 2008. Specifically, SCS stated that on

May 8, 2008, complainant did not report back to her sack sorter machine

assignment on time. SCS stated that complainant had gone to break and

"was expected to report back to her work area at 2:20 a.m. At 2:35

a.m. she had still not reported back so I was walking out towards the rest

rooms and found her in the intake area talking with fellow mailhandler

[named employee]. I informed her that I needed her to report to the sack

sorter. She responded 'in a minute' and I then repeated my instructions

to her and she continued to ignore my instructions. I then instructed

her one more time and she went on to tell me that she was only gone

for 4 minutes. She continued to argue with me until fellow Supervisor

[named employee] came over and asked her off the workroom floor and

they went into the office to discuss the situation and to let her know

that she was needed to report back to her work area." Furthermore,

SCS stated that he did not discriminate against complainant based on

her sex and prior protected activity.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

We find that after a careful review of the record, the agency articulated

legitimate, nondiscriminatory reasons for its actions. Complainant has

not demonstrated that these reasons were a pretext for discrimination.

Complainant, on appeal, has provided no persuasive arguments indicating

any improprieties in the agency's findings. Therefore, after a review of

the record in its entirety, including consideration of all statements 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 (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

August 20, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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