0120121408
06-18-2012
Natalie Y. Hill-Harvey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Natalie Y. Hill-Harvey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120121408
Agency No. 4J-604-0107-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 3, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Bolingbrook Post Office facility in Bolingbrook, Illinois. On August 8, 2011, Complainant filed a formal complaint claiming that the Agency discriminated against her on the bases of race (African-American), sex (female), age (45), and in reprisal for prior protected EEO activity when:
on November 30, 2010, she was issued a Notice of Removal effective May 11, 2011, after a pre-arbitration decision found that she violated her last chance settlement agreement and that her November 30, 2010 Notice of Removal was issued for just cause.
.
Following an investigation by the Agency, Complainant was given the option of either a final decision, or a hearing before an EEOC Administrative Judge. Complainant did not respond, and the Agency therefore issued a final decision, finding no discrimination.1
The record reflects that on November 30, 2010, Complainant was issued a Notice of Removal effective May 11, 2011, for violation of Last Chance agreement, for failure to maintain a regular schedule.
Complainant stated that the Agency discriminated against her when it issued the Notice of Removal on November 30, 2010, because of her race, age, sex and in reprisal for her prior EEO activity. Complainant stated that because she is a single parent, she had requested for a schedule change to ensure safety of her son because of the rough neighborhood in which they live, and the unforeseen schedule change of her child's school. Complainant stated further that her request was denied, although the requests of her fellow white younger co-workers were granted. Complainant also alleged that the Agency retaliated against her for her prior EEO activity, after she had filed an EEO complaint in December 2009.
The Postmaster, EAS-22, (race (Caucasian), sex (male) and age (48)) stated that he was aware of Complainant's race, sex and prior EEO activity. However, the Postmaster denied that he discriminated against Complainant. He stated that he concurred with Complainant's supervisor when the supervisor issued the removal notice because Complainant's attendance was unacceptable and continued to be so. The Postmaster noted that Complainant had been given numerous chances to get her situation corrected. The Postmaster noted that Complainant had even been provided a fourteen-day "cite free" period in December 2010, in which she was to get her family problems settled. The Postmaster stated that following the issuance of the "November 30, 2010 removal notice Complainant took off work for a period of three to four months beginning in mid-December 2010 and returned to work in mid-April 2011. The Postmaster stated that Complainant had acceptable attendance for about two weeks and she then began to accrue unscheduled absences again to the point that he instructed Complainant's supervisor to verbally warn her that she was still under the terms of the last-chance agreement. He stated that though Complainant cited her son as her reason for being unable to get to work on time, she would accrue unscheduled absences even on days when he was not in school. The Postmaster also disputed Complainant assertion that Caucasian coworkers who had attendance problems were treated differently from her. He stated that one employee who was issued a Last Chance agreement did not get the Letter of Removal because that employee was able to improve his attendance and eventually his discipline expired in December 2009.
Complainant's Supervisor, EAS-17 stated that she issued the Notice of Removal effective May 11, 2011, to Complainant for failing to abide by her Last Chance Settlement Agreement and failure to maintain a regular schedule. She denied that complainant's race, sex and age were not a factor in her decision to issue the Notice of Removal effective May 11, 2011. She admitted that she was aware of Complainant's prior EEO activity but denied that the prior activity played any role in issuing the removal letter.
The record indicates that subsequent to the signing of the Last Chance agreement on June 8, 2010, on 28 occasions between June 15, 2010 and November 22, 2010, Complainant was late or had Unscheduled Leave Without Pay and/ or Unscheduled Sick Leave.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that Complainant has established a prima facie case on the raised bases, the Agency nevertheless articulated legitimate, non-discriminatory reasons when on November 30, 2010, Complainant was issued a Notice of Removal effective May 11, 2011.
Here, the Postmaster, stated that Complainant signed a Last Chance Agreement in June 2010 and subsequently violated that agreement with a record of unacceptable attendance. He stated that Complainant was given numerous chances to get her situation corrected and was even given a fourteen-day "cite-free" period in December 2010, in which she was to resolve her family issues. The Postmaster stated that Complainant's history of attendance problems in which she cited her son as her reason for being unable to get to work on time, showed that she accrued unscheduled absences even on days and at times when he not in school. The Postmaster stated that the raised bases were not factors in any of his decisions concerning Complainant's Notice of Removal effective May 11, 2011. He stated that he followed the Postal Service policies and the provisions in the ELM when he issued the Notice of Removal.
Complainant's Supervisor stated that she issued the November 30, 2010 Notice of Removal effective May 11, 1011 to Complainant with the concurrence of the Postmaster for failing to abide by the Last Chance Agreement and for failing to maintain a regular schedule. She averred that Complainant's actions violated ELM Sections 5 and 6 pertaining to attendance and that Complainant's Race, Sex, Age and prior EEO activity were not factors in her decision concerning issuing Complainant the Notice of Removal effective May 11, 2011.
Here, Complainant did not offer any evidence to rebut the Agency's assertion that she was issued the Notice of Removal effective May 11, 2011, was for just reasons.
Therefore, 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 because the preponderance of the evidence of record does not establish that discrimination occurred.
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
June 18, 2012
__________________
Date
1 In its final decision, the Agency noted that one additional claim (regarding denial of a schedule change) was dismissed in a partial acceptance/partial dismissal notice, dated October 3, 2011, on the grounds of untimely EEO contact. The Agency found that the October 3, 2011 decision explaining the grounds for this dismissal has been "endorsed and incorporated by reference" in the instant final decision. On appeal, Complainant does not expressly address the Agency's partial dismissal of this claim, and it will not be further addressed in our decision.
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0120121408
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013