0120110641
02-09-2012
Martha Y. Sayaseng, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Martha Y. Sayaseng,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110641
Agency No. 1F-937-0007-10
DECISION
On October 29, 2010, Complainant filed an appeal from the Agency's September 27, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal 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, PS-06, at the Agency's Fresno Processing and Distribution Center in Fresno, California.
Complainant filed an EEO complaint dated April 22, 2010, alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), religion (Buddhist), and age (48) when:
1. On December 3, 2009, Complainant's request for leave from December 26, 2009, through January 25, 2010, was denied;
2. On December 16, 2009, Complainant's supervisor ordered her to finish a job in 15 minutes causing her to injure herself;
3. On January 14, 2010, while Complainant was out on leave, her supervisor instructed her to report to the office immediately to submit medical documentation;
4. On January 22, 2010, Complainant was issued a Letter of Warning (LOW), dated January 21, 2010; and
5. On February 24, 2010, Complainant's supervisor forced her to run the DBCS machine for an additional 35 minutes longer than normal.
On April 30, 2010, the Agency accepted Complainant's complaint for processing. 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision dated September 27, 2010, the Agency dismissed issue (4) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that as a result of a grievance settlement, the January 21, 2010 LOW was reduced to an official discussion. The Agency argued that the Commission has held that official discussions do not render an employee aggrieved under the regulations. The Agency proceeded to address issue (4) and the remaining allegations on the merits. In its decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find the Agency provided legitimate, non-discriminatory reasons for its actions. With regard to issue (1), the record reveals that in November 2009, Complainant requested time off between December 26, 2009, and January 29, 2010, to perform a Buddhist ceremony overseas for her father-in-law who had died three years earlier. In his Affidavit, Complainant's supervisor, Person A, stated that Complainant's leave was denied because it was the start of the American Postal Worker's Union (APWU) Annual Leave sign-up for the 2010 year, which would not be finalized until December 21, 2009. Person A noted that the APWU sign-up is based on seniority and that Complainant is the junior employee in her unit. The record reveals that part of the time Complainant requested to take leave is prime time for leave usage. In her Affidavit, the Manager of Distribution Operations (MDO) noted with regard to leave taken during the last week in December and the first two weeks of January, all APWU employees must have at least 40 hours of Annual Leave accumulated by the sign-up period before their request for leave is approved by the APWU's Annual Leave coordinator. The MDO noted that Complainant had a balance of zero Annual Leave accumulated at this time. The MDO stated that with regard to the remaining weeks in Complainant's request (outside of the last week in December and the first two weeks in January) that Complainant should sign up for those weeks during the APWU's annual leave sign-up period.
With regard to issue (2), Complainant alleged that on December 16, 2009, Person A removed Co-Worker 1 from his job and ordered her to finish a job on the DBCS machine in 15 minutes causing her to injure herself. Complainant stated that Co-Worker 1 was much taller than her and therefore he stacked the mail trays higher than she would have stacked them. She stated that in order for her to take down the top tray, she had to stretch to reach it and injured herself. Complainant also alleged that Co-Worker 1, Co-Worker 2, and Co-Worker 3 are allowed one hour to pull mail out of the DBCS machine; however, she was only given 15 minutes.
In his affidavit, Person A denied ordering Complainant to finish a job on the DBCS machine in 15 minutes. Person A stated he has no knowledge of any of the employees named by Complainant being allowed one hour to pull mail down from the DBCS machines. Person A stated and the record reflects, that all DBCS machines finished within six minutes of each other on December 16, 2009. The Agency noted that of the three machines running that day, the earliest one stopped running at 20:34 hours and the latest one stopped running at 20:47 hours. Moreover, Person A stated that Complainant injured herself on December 16, 2009, by climbing onto a piece of equipment that was not intended to be used for climbing in order to get a full tray of mail from a top shelf. Person A stated that Complainant could have asked for assistance, but did not.
With regard to issue (3), Complainant noted that she was placed on leave by her doctor from December 31, 2009, through January 14, 2010. She stated that on January 14, 2010, while she was out on leave, her supervisor instructed her to report to the office immediately to submit medical documentation. Complainant stated that she spoke with Person A on January 14, 2010, and she told him that she had a doctor's note releasing her back to work the following day. She stated that she told Person A that she would give him the note on January 15, 2010; however, he demanded to be provided the note immediately. Thus, Complainant stated she brought the note to him right away as requested on January 14, 2010.
In his Affidavit, Person A stated that he did not call Complainant from home on January 14, 2010. He stated that on January 7, 2010, he contacted Complainant at her home while she was on unscheduled leave under the Family Medical Leave Act from December 24, 2009, through January 15, 2010. He stated that he contacted Complainant to inquire as to the medical documentation she had to submit in order to return to work. He stated that he gave Complainant a phone number and a facsimile number for the Supervisor's Office; however, Complainant decided on her own to come into the office to submit the medical documentation.
With regard to issue (4), Complainant alleged that she was subjected to discrimination when she was issued a LOW dated January 21, 2010, for unsafe performance of duty when Person A asked her to complete an assignment for Co-Worker 1 on December 16, 2009. In response to this claim, Person A noted that a LOW dated January 21, 2012, was issued to Complainant charging her with "Unsatisfactory Performance to Work in a Safe Manner/Failure to Immediately Report an Accident." The LOW indicated that Complainant incurred a preventable industrial accident, and did not report the accident until approximately two weeks later. The LOW described Complainant's unsafe act as using a bread rack as a step stool so that she could reach full trays of mail.1
With regard to issue (5), Complainant claimed that on February 24, 2010, Person A forced her to run the DBCS machine for an additional 35 minutes longer than normal. Person A stated that he is unaware of the alleged incident on February 24, 2010, and he pointed out that Complainant worked her normal eight hour shift on that day, as reflected by her clock rings.
In an attempt to prove pretext, Complainant makes general assertions that Person A does not like her because of her sex, that Person A thinks she is old and cannot do her job, that he thinks her religion is "weird," and that Person A is prejudiced against Asians. Also, in her affidavit, Complainant notes that on an unspecified date she told Person A that her memory was not good because she was "getting old" and she states he jokingly responded that he was old too. Assuming this comment was made, we find it is at most an isolated comment and was not contemporaneously made in conjunction with the alleged Agency actions at issue. Upon review, we find Complainant failed to prove, by a preponderance of the evidence, that the Agency's articulated explanation for its actions in issues (1) - (5) was a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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
2/9/12
__________________
Date
1 The record further reveals that, pursuant to a grievance settlement dated January 27, 2010, the LOW was reduced to an official discussion and would be removed from Complainant's personnel file
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01-2011-0641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110641