Wilma Figueroa, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionSep 28, 2009
0120080731 (E.E.O.C. Sep. 28, 2009)

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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