0120112965
10-22-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112965
Hearing No. 443-2010-00127X
Agency Nos. 4J-530-0004-10 and 4J-530-0081-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 25, 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. For the following reasons, the Agency's FAD which found that Complainant failed to show that she was subjected to discrimination and harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services, EAS-17, at the Agency's Wauwatosa Branch in Milwaukee, Wisconsin. On November 21, 2009, and July 31, 2010, Complainant filed formal complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
Agency Case No. 4J-530-0004-10
1. Ongoing since on or about August 31, 2009, she has been subjected to a hostile work environment, including but not limited to: denied schedule changes; personal medical information was not safeguarded; called a liar; subjected to malicious statements; charged AWOL; 3971s were not approved; harassed about 3971s and vacation time; scheduled to work past eight hours; she was issued a Letter of Warning dated October 15, 2009; issued discipline for a September 14, 2009, AWOL when a 3971 was present; and she was singled out when instructed to go out and walk routes on the holiday;
2. Based on retaliation (prior EEO activity) when on November 20, 2009, she became aware that the manager's statement on her Form CA-1 had nothing to do with the incident at all;
3. Based on retaliation (prior/current EEO activity) when on or about January 7, 2010, she received a Letter of Decision dated January 5, 2010, which upheld the Letter of Warning dated October 15, 2009;
4. Based on race (Black), sex (Female), and retaliation (prior/current EEO activity) when she was not selected for six positions that were posted for application during November 2009; she was put into an EAS position at Hampton Station which she did not apply for; and she was denied a body for body trade and a lateral transfer;
Agency Case No. 4J-530-0081-10
5. On May 17, 2010, a Letter of Decision was issued upholding a Proposed Letter of Warning in Lieu of a 7-day Suspension; and
6. On June 26, 2010, she was issued a PIP.1
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but withdrew her request. A FAD was subsequently issued. The FAD found that Complainant failed to show that she was subjected to discrimination or harassment. Specifically, the Agency maintained that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that the articulated reasons were pretext for discrimination. Further, the Agency found that the incidents complained of by Complainant were work related and were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency provided a brief on appeal.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision.
We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim (1), where Complainant was denied schedule changes as compared to another supervisor; the Agency explained that the comparator provided by Complainant had asked to come in to work one hour earlier so that she could expand her lunch in order to work out at a nearby gym. The comparator still worked eight hours a day and was present at the office at the end of the day when she was in charge. Management maintained that Complainant in comparison, left early three days a week over a period of several months in order to go to the doctor, and she did not make up the time as the comparator supervisor did. Further, management explained that with regard to the form 3971 submitted on September 12, 2009, Complainant was told on Friday evening that she would have to stay to close the station the following day. On that Friday evening, without mentioning anything to her supervisor she dropped a form 3971 on his desk, which indicated that she would not be able to work later than 4:00 p.m., as she had child care concerns and was using FMLA dependent care. Management explained that the form was seen only after Complainant had left for the day. The supervisor thereafter contacted the FMLA coordinator to find out what was going on. The coordinator explained that while FMLA could be used to protect leave, it could not be used to dictate scheduled hours of work. Therefore, the supervisor denied the leave and placed the form on the carrier schedule where Complainant would see that her request had been denied.
Thereafter, on September 14, 2009, Complainant did not come in to work. When asked the following day where she had been, she replied that she had told the acting supervisor that she was going to the doctor and might have to take Monday off as well if she could not immediately get a doctor's appointment. She indicated that she had submitted a form 3971 for that day. A search was conducted for the form and it could not be found. Following an extensive search, a 3971 was found in the shredder. The supervisor maintained that he questioned Complainant about this as he thought that it was suspicious that the form would be in the shredder. As he did not believe Complainant regarding her submission of the form and as the acting supervisor did not recall Complainant giving her a form, the supervisor found Complainant to be Absent Without Leave (AWOL) and ultimately issued a Letter of Warning (LOW) for the September 14, 2009, incident for failure to maintain a regular work schedule. Further, Complainant's request for one hour of sick leave on September 18, 2009, was denied because supervisors were only allowed to take leave in increments of eight hours and Complainant should have known this. Finally, management explained that Complainant was asked to walk routes on the holiday because she was the supervisor.
For claim (2), Complainant alleged that management made comments on her form CA-1 that had nothing to do with the incident. Management maintained that after a worker brought in a bird, Complainant had an allergic reaction to the bird's feathers. Complainant filed a Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation on November 13, 2009, which described the cause of injury as the bird's feathers. Complainant reported a sore throat, a hard time swallowing and ear pain. Complainant's supervisor wrote on the back of the form that Complainant's reaction seemed delayed and that he did not actually know if there had been a reaction. He also wrote that Complainant was having problems getting along and claimed that there was some question in his mind as to whether the claim Complainant was making was legitimate. Management maintained that Complainant's protected bases had nothing to do with the supervisor's disbelief of Complainant's claims.
With respect to claim (3), where on January 5, 2010, Complainant received a Letter of Decision upholding the October 16, 2009, LOW management explained that the LOW decision was upheld because Complainant failed to maintain a regular work schedule.
Regarding Complainant's nonselection for one of six positions, it was noted that Complainant withdrew all but two of her nonselection allegations, i.e., those concerning the two positions at the Bradley Station. Management indicated that the vacancies were listed in order to place graduates and recent graduates of the supervisory program. Applicants submitted an application and were interviewed. Each applicant was given a matrix score and after the applicant packages were completed, the supervisors of the various stations were allowed to pick from the group in random order. Management explained that while the two selectees for the Bradley station had not been EAS-17 supervisors, but were EAS-15 supervisors - they both had acted in details for the EAS-17 position. Moreover, management explained that the two selectees were able to work the hours needed for the position while Complainant had indicated that due to childcare concerns she was unable to work an eight hour schedule at all times. Further, with respect to Complainant's argument that a body for body transfer or lateral transfer could have been made to place her in the location of her choice, management explained that after the EAS-17 assignments were made such transfers could not be made because EAS-17s were placed where they were needed. Management indicated that Complainant was placed in the Hampton location and while this might not have been her first choice, this was where she was needed. Also, contrary to Complainant's argument the Agency maintained that both male and female EAS-17s who were not chosen for one of the six positions were placed in locations that might not have been their first choice.
Finally, with respect to claims (5) and (6), the Agency maintained that Complainant was issued a Letter of Warning and was issued a PIP because she failed to adhere to the standards of a supervisor. Management explained that one of the Agency's vehicles broke down and Complainant, as the supervisor, failed to follow up to make sure that the vehicle was towed and secured; and because of this incident she was disciplined. Further, Management explained that Complainant was put on a PIP to help her improve her deficiencies. The Agency maintained that Complainant was the only supervisor that had to be warned about her time and attendance, she often left other supervisors to close out the office when she had child care issues, she failed to follow-up on the distressed vehicle, and she failed to properly submit 3971s. Management maintained that the PIP was meant to be an intervention tool and not discipline.
We find that the Complainant failed to show that the Agency's nondiscriminatory reasons were pretext for discrimination. We find that other than Complainant's conclusory statements, she provided no evidence which demonstrated that discriminatory animus was involved. We find that the incidents complained of primarily dealt with Complainant's performance of her supervisory duties and upper management's directions to her as to what was expected.
Further, we find the Agency clearly articulated the reasons why Complainant was not selected for the positions. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may have been able to establish pretext with a showing that her qualifications were plainly superior to those of the selectees. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant, however, has failed to make this showing. Neither she nor the record provide any persuasive evidence that Complainant was so better qualified for the position than the selectees that discrimination could be inferred from her non-selection. The record also does not show that the selecting officials considered Complainant's protected bases with regard to the nonselections.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
Therefore, the Agency's FAD which found that Complainant failed to demonstrate that she was subjected to discrimination and/or harassment is AFFIRMED.
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
_10/22/14_________________
Date
1 On September 9, 2010, Complainant submitted a PS Form 2564-A alleging discriminatory harassment based on Retaliation when a Letter of Warning in Lieu of a 14-Day Suspension dated May 26, 2010, was rescinded by the Agency. On October 7, 2010, this allegation was dismissed as untimely filed and for failure to state a claim. As Complainant does not dispute the dismissal of this claim it will not be addressed in this decision. The Agency also dismissed claims (5) and (6) for untimely EEO Counselor contact and failure to state a claim but discussed the claims in the FAD for the purpose of Complainant's harassment claim.
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0120112965
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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