0120112510
12-16-2011
Yolanda G. Rodriguez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Yolanda G. Rodriguez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112510
Agency No. 1J-603-0022-10
DECISION
On April 13, 2011, Complainant filed an appeal from the Agency’s March
8, 2011, 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. The Commission deems the appeal timely and accepts it for
de novo review 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 giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s Bedford Park South Suburban
Processing & Distribution Center in Illinois. On September 20, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of national origin (Hispanic & Mexican) and in
reprisal for prior protected EEO activity when:
1. her May 23, 2010-June 2, 2010 leave request was not approved;
2. on June 29, 2010, three requests for schedule changes in July 2010
were not approved; and
3. from July 4, 2010 onward, Complainant was harassed.
At the conclusion of the investigation, the Agency provided Complainant
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).
In its decision, the Agency found that Complainant had not engaged in
prior protected activity thereby defeating her claim of retaliation.
It further determined that there was insufficient evidence to support
any inference of national origin discrimination. Finally the decision
noted that Complainant’s leave request was denied because she submitted
inconsistent medical documentation for leave extending beyond 24 hours
and her requests for schedule changes were denied due to the needs of
the service. The Agency also found no evidence to support a finding that
Complainant was subjected to hostile conduct. The decision concluded
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail,
she must first establish a prima facie case 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. McDonnell Douglas,
It is undisputed that Complainant did not engage in prior protected
activity. Moreover, the only evidence Complainant offers to support
her claim of national origin discrimination is her national origin. She
states on several occasions that she is Hispanic and Mexican. However,
the record shows that many employees had leave requests denied due
to insufficient medical documentation. With regard to the schedule
changes, we note that Complainant’s regularly scheduled off days were
Wednesday & Thursday. She appeared to be asking to have three of the
five Saturdays in July 2010 off for personal convenience. Ultimately,
one of those requests was granted so she could attend a wedding.
Complainant presents no evidence that other employees of different
national origins were treated more favorably under similar circumstances.
Accordingly, we agree with the Agency that Complainant did not set forth
evidence from which a reasonable fact finder could draw an inference
of discrimination or retaliation with regard to claims (1) and (2).
See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
To prove her harassment claim, complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a
“reasonable person” in complainant’s position would have found
the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis, i.e. in this case,
national origin or retaliation. Only if complainant establishes both
of those elements, does the question of the Agency’s liability for
harassment present itself. In this case, Complainant’s claim of
harassment fails as there is no evidence to support a finding that any
of the Agency’s conduct towards her was unlawfully motivated.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 16, 2011
__________________
Date
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0120112510
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112510