0120080731
09-28-2009
Wilma Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Wilma Figueroa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120080731
Hearing No. 451-2007-00123X
Agency No. 4G-780-0282-06
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
October 25, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 (FAD).
ISSUE PRESENTED
Whether complainant met her burden of proving that she was subjected to
unlawful discrimination and/or retaliation.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a City Carrier at the Downtown Waco Station in Waco, Texas.
On December 18, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of disability (high blood
pressure)1 and reprisal for prior protected EEO activity under the
Rehabilitation Act, when:
(1) from September 26, 2006 through November 27, 2006 complainant was
harassed in that on September 28, 2006, her starting time was changed;
(2) on October 20, 2006, her line of travel (i.e. route for delivering
mail) was changed and personal medical information was discussed in
front of co-workers; and
(3) on November 22 and 27, 2006, she was issued a letter of warning.
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). 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 discrimination as alleged.
Final Agency Decision
The FAD specifically found as follows: complainant did not establish
that she is disabled within the meaning of the Rehabilitation Act.
Further, the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to issue (1), the manager (M1) testified
that every carrier (30 approximately) at the Station has had their start
time changed on numerous occasions. M1 added that management is free to
change the start times according to Postal Service policy and that there
are no rules prohibiting such actions. He averred that a grievance was
filed on this issue and management was exonerated from any wrongdoing.
With regard to issue (2), M1 stated that complainant requested that her
line of travel be changed, and it was changed in order to make it more
efficient for complainant (although it was not changed in the manner that
complainant requested it be changed). Management denied being aware of
any conversation in front of employees regarding complainant's private
medical information. As to issue (3), the first Letter of Warning was
issued because complainant had fallen on some steps and she engaged in
unacceptable safety procedures. The second Letter of Warning was issued
because complainant failed to follow instructions. The FAD found no
evidence of pretext. Applying a harassment analysis, the FAD further
found that the alleged harassment was neither severe nor pervasive,
and also was not based on complainant's membership in a protected group.
The FAD found no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant, through counsel, states: "In accordance with
current Commission law, the evidence presented in the Hearing supports
the finding of hostile environment and retaliation." Complainant asks
the Commission to find discrimination in this case. In reply, the
agency states: "In her appeal brief, [complainant] directs the OFO
to review the Hearing Transcript for evidence to support her claims.
No Hearing was conducted in this matter, as [complainant] withdrew her
request for a hearing and requested a FAD. As such, she has provided
absolutely no basis for her appeal." The agency asks the Commission to
affirm the FAD.
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").
Harassment
We begin by addressing all of the challenged actions jointly, within
a harassment framework. Based on the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a
claim of harassment, complainant must prove that: (1) she was subjected
to harassment that was sufficiently severe or pervasive to alter the terms
or conditions of employment and create an abusive or hostile environment;
and (2) the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence in
the record is insufficient to support a finding that management's actions
towards complainant were based on her membership in a protected group.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6.
Disparate Treatment
The allocation of burdens and order of presentation of proof in a case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reason offered by the
employer was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming arguendo that complainant is disabled under the Rehabilitation
Act, and that she otherwise established a prima facie case of
discrimination and/or retaliation, the Commission finds that complainant
has not met her burden to show that the agency's reasons for its actions
are more likely than not, pretexts for discrimination or retaliation.
In so finding, we note that we do not have the benefit of an AJ's
findings after a hearing, as complainant withdrew her hearing request,
and therefore, we can only evaluate the facts based on the weight of
the presented to us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
_______09/28/09___________
Date
1 Complainant also states that she has had three shoulder surgeries.
She states that she has severe arthritis in her neck and she also fell
and injured her wrist on October 30, 2006.
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0120080731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080731