0120102875
04-20-2012
Mary A. Ellis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mary A. Ellis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102875
Hearing No. 560-2008-00206X
Agency No. 1J-633-0008-07
DECISION
On June 24, 2010, Complainant filed an appeal from the Agency's May 19, 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, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 which found that Complainant failed to show that she was subjected to discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant established that she was subjected to discriminatory harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations at the Agency's St. Louis Metro Annex facility in Hazelwood, Missouri. On October 27, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Baptist), disability (Osteo-Arthritis, Bi-Polar), age (58), and reprisal for prior protected EEO activity1when from May 2006 to the present, she was subjected to discriminatory harassment, including but not limited to: (1) her supervisor hung up on her when she called in; (2) in May 2006, her supervisor disapproved her annual leave request and charged her Absent Without Leave (AWOL); (3) her pay adjustment was not processed in a timely manner; (4) in June 2007, she was put into a Leave Without Pay (LWOP) status; and (5) she was not provided a watch after she retired on July 1, 2007.2
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). 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 the Agency subjected her to discrimination as alleged. The Agency explained that it offered legitimate nondiscriminatory, reasons for its actions, namely, that (1) her supervisor had no recollection of hanging up on Complainant and indicated that even if the telephone was disconnected there was no evidence the Complainant attempted to call her back. Further, with regard to issue (2), the Agency indicated that Complainant was charged AWOL because on May 8, 2006, instead of following the proper leave requesting procedures, Complainant called and asked the secretary on Tour 3 to fill out a 3971 leave request requesting 40 hours of "vacation leave (annual)" to start that evening. The Agency maintained that Complainant failed to follow nearly every aspect of the Agency's leave requesting procedures, e.g., she did not request annual leave in advance, she did not contact her immediate supervisor, she did not show up for work as scheduled, and she did not provide timely documentation to substantiate her unscheduled absence. According to the Agency, nothing that Complainant stated or provided justified her taking 40 hours of non-emergency annual leave without the prior approval of her supervisor.
Regarding issue (3), that the Agency did not process her pay adjustment in a timely manner, the Agency maintained that unlike craft employees who physically clock-in to account for their time, supervisors are automatically entered into the system and manual adjustments are required when adjustments are needed. Complainant stopped coming to work and subsequently began requesting sick leave to cover her absences on May 8, 2006. To be properly charged and paid for sick leave, an employee is required to call in to the eRMS3 system, so that a computer-generated report is issued. In Complainant's instance the record establishes that for the dates covered by pay periods 06-17-2, 06-22-2, 06-24-2 through 06-26-2 and 07-11-1, the eRMS system did not generate a 3971 to cover these time periods. As no report was issued, the information had to be manually entered. It was discovered that Complainant had been paid for days that she did not work. As soon as management became aware of the error, the correction was made. According to the Agency, any alleged delays in making the adjustments were based on management being unaware of Complainant being paid work hours, including premium pay.
Regarding issue number (4), Complainant was put in LWOP in June 2007, because she had used most of her sick leave. When it was discovered that Complainant had initiated the retirement process, management was required, in accordance with Agency regulations, to make sure that she did not have a negative leave balance when she retired. Finally, with respect to issue (5) not being provided a watch, the Agency explained that the Human Resources (HR) employee responsible for providing watches to retirees was out on vacation and that is the reason why Complainant did not receive a watch at the time of retirement. The Agency indicated that several other employees were also affected by the HR employee's absence.
The Agency contends that the above explanations are legitimate, nondiscriminatory, reasons for its actions and that Complainant has failed to show that its reasons were pretext for discrimination. Finally, the Agency also indicated that management in no way harassed Complainant. The Agency acknowledged that Complainant's supervisor was, among other things, rude to all of her employees and that this was simply her management style. Moreover, the Agency argued that the incidents complained of were not severe or pervasive enough to establish a claim of harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that the Agency did not argue that she was not meeting the legitimate expectations of the Agency. She also maintains that there is nothing in the record that contradicts or even disagrees with her account of her excellent performance. Complainant indicates that she was treated differently than other employees with regard to her taking leave. She contends that the witnesses that she identified who could support her claim of discriminatory harassment were not interviewed. Complainant also argues that the investigative record is not complete.
Further, Complainant contends that she was charged AWOL, even though she had many hours of both sick and annual leave available. She maintains that after she altered the Agency to this mistake the Agency took a significant amount of time correcting this error. Complainant provided copies of her insurance records to support her claim of leave usage. Complainant also argues that as a result of the Agency's harassment she was forced into involuntary retirement.
In response, the Agency argues that the FAD's finding of no discrimination should be affirmed. The Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that those reasons were pretext. The Agency asserts that the actions complained of by Complainant were carried out because of legitimate business reasons to maintain optimal efficiency.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
In the instant case the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency has articulated legitimate, nondiscriminatory reasons for its actions and Complainant has failed to show that the reasons were pretext for discrimination. The Agency offered the following nondiscriminatory legitimate reasons for its actions: issue (1) Complainant's supervisor had no recollection of hanging up on Complainant; issue (2), the Agency indicated that Complainant was charged AWOL because on May 8, 2006, instead of following the proper leave requesting procedures, Complainant called and asked the secretary on Tour 3 to fill out a 3971 leave request requesting 40 hours of "vacation leave (annual)" to start that evening; issue (3), the Agency did not process her pay adjustment in a timely manner, because supervisors are automatically entered into the system and manual adjustments are required when adjustments are needed. Further, in Complainant's instance the record establishes that for dates covered by pay periods 06-17-2, 06-22-2, 06-24-2 through 06-26-2 and 07-11-1, the eRMS system did not generate a 3971 to cover these time periods. As no report was issued, the information had to be manually entered; issue number (4), Complainant was put in LWOP in June 2007, because by that time she had used most of her sick leave. And, in accordance with Agency regulations, once an employee initiated retirement procedures management had a duty to make sure that they did not have a negative leave balance when they retired. Finally, with respect to issue (5) not being provided a watch, the Agency explained that the employee responsible for providing watches to retirees was out on vacation and that is the reason why Complainant did not receive a watch at the time of her retirement. We find that Complainant has presented no persuasive evidence which shows that the Agency's actions were pretext for discrimination or involved discriminatory animus toward her protected bases.
Further, with respect to Complainant's contention that the investigation was incomplete in that her witnesses were not interviewed and the Agency did not provide "hard" evidence to support its contentions, the Commission notes that Complainant had originally requested a hearing before an EEOC Administrative Judge (AJ), which would have given her the opportunity to call witnesses and supplement the record. Instead, Complainant withdrew her request in favor of a decision by the Agency based on the investigative record.
With respect to Complainant's allegation that she was subjected to a constructive discharge, we note that constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from her position. We note from our review of the record that Complainant maintains that she had been harassed by management from 1999 to 2006. While Complainant's allegations, as set forth in footnote 2, were found to be untimely in the present case, we are reviewing them as background information with regard to her claim of constructive discharge. The record shows that one manager in particular was particularly unkind to Complainant. The manager called her names like "old hag," and "old rag," the manager swore at Complainant and swore about Complainant to her subordinates. The manager made fun of Complainant's "country-style of talking" and told Complainant that it was time for her to retire. A male manager told Complainant that "no woman should be in charge of nothing" and that "women were only good for one thing." Complainant also maintained that she had once been sexually propositioned by a male manager but declined his advances. Complainant provided letters of support from coworkers and subordinates which acknowledged this treatment.
Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to retire. The Commission has established three elements which an employee must establish in order to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990).
In the instant case, while it is true that Complainant was treated in an unprofessional, insulting manner, the evidence shows that this conduct was not limited to Complainant. Both male and female managers, on occasion, treated all the employees with disrespect and disdain. In fact, one of the witnesses indicated that she left her position because of their immature behavior. Therefore, as the record shows that while Complainant was a target of management's behavior, the behavior was not based on her protected bases and was not exclusive to her. Further, we do not find that the conduct was pervasive enough as it occurred at various times over an extended period of time. While we find management's behavior sophomoric and unprofessional the record does not support Complainant's contention that her retirement constituted a constructive discharge.
Finally, with respect to Complainant's contention that she was subject to a hostile work environment with respect to claims 1 through 5, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a 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, with respect to claims 1 through 5, were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's finding of no discrimination.
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
___4/20/12_______________
Date
1 Complainant previously filed EEO complaints in 1996 and 1998.
2 Complainant, originally, also alleged that she was subjected to a hostile work environment from 1999 to May 2006, when she was called derogatory names, belittled, subjected to profanity, threats, crude insults and unwanted sexual advances and being denied overtime. The Agency dismissed these claims for untimely EEO Counselor contact. Complainant on appeal argues that the incidents complained of were not discrete incidents but proof of a continuing violation. Based upon our review, the Agency properly dismissed the claims as untimely as they are indeed discrete acts, but we will consider them as background evidence.
3 The Enterprise Resource Management System (eRMS).
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0120102875
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102875