0120062665
06-29-2007
Teresa Schulstadt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teresa Schulstadt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200626651
Hearing No. 150-2005-00692X
Agency No. 4H-320-0055-05
DECISION
On March 23, 2006, complainant filed an appeal from the agency's February
21, 2006 final action 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 Commission affirms the
agency's final action.
On April 3, 2005, complainant filed an EEO complaint alleging that she
was discriminated against in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. The Manager allegedly processed complainant's leave request forms
(3971s) improperly and in a manner different from 3971s submitted by
other Postmasters.
2. The Manager awarded the comparative Postmaster Pay-for-Performance
compensation which complainant alleges she did not receive.
3. Complainant was informed on October 25, 2004, of the non-acceptance
of her called-in request for sick leave, that she would be required
to submit medical documentation once every pay period (two weeks),
and that her requests for LWOP would not be approved until all of her
annual leave and sick leave were exhausted.
4. Complainant learned on January 5, 2005, that employees at her office
were directed to shred all documents pertaining to her.
In a letter dated May 19, 2005, the agency informed complainant that only
the first two claims listed above would be accepted for investigation.
The third and fourth claims were dismissed due to complainant's failure
to comply with the 45-day time limit for initiating contact with an EEO
Counselor regarding an allegedly discriminatory act.
At the time of events giving rise to this complaint, complainant worked as
a Postmaster at the agency's Ebro Post Office facility in Ebro, Florida.
The Manager, Post Office Operations required all Postmasters under her
supervision to submit 3971s directly to her for purposes of proper record
maintenance. In June 2004, complainant began a period of continuous leave
which included the time period of the alleged discriminatory actions.
Until October 22, 2004, complainant would submit 3971s to the Manager
and would also phone the Officer-in-Charge (OIC) of the Ebro Post Office
with instructions on how to enter her weekly time into the Time and
Attendance Collection System (TACS).
When the Manager noticed discrepancies between the 3971s submitted
directly to her by complainant and the time entered into TACS by
the Ebro OIC, she instructed the OIC to use only copies of approved
3971s when entering complainant's time into TACS. After complainant
submitted several 3971s in which the type of leave being requested was
not sufficiently specific, the Manager decided to withhold approval
of leave without pay (LWOP) until complainant's sick leave and annual
leave had been exhausted for the periods covered by the respective 3971s.
Complainant was informed of this policy change in a letter dated October
18, 2004. The decision to withhold approval of LWOP until complainant
had used all of her sick leave and annual leave was also supported by
the Manager's doubts that complainant would eventually return to duty.
According to the Employee and Labor Relations Manual (ELM 543.23),
approval of LWOP is conditioned upon a reasonable expectation that the
employee will return to duty at the end of the approved LWOP.
As a result of the Manager's decision to deny LWOP requests when
a positive leave balance still remained, multiple 3971s submitted
by complainant were not approved during the ensuing months due
to the existence of a positive leave balance. Additionally, some
of complainant's 3971s were denied because she had structured the
requested leave in a manner which would allow her to receive holiday
pay in violation of ELM guidelines.
Complainant highlights the Manager's handling of another Postmaster under
her supervision as evidence of disparate treatment. The comparative
Postmaster decided to retire early due to illness, and was allegedly
allowed to exhaust his sick leave and annual leave before retiring and
was not on extended LWOP.
On February 3, 2005, complainant learned that the comparative Postmaster,
who had worked six weeks less than complainant during the relevant time
period, had received Pay-for-Performance compensation. Complainant also
received Pay-for-Performance compensation, which was included in her
paycheck, while a separate check was sent to the comparative Postmaster.
At the conclusion of the investigation, complainant was provided 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 action wherein it determined that complainant
failed to prove that she was subjected to discrimination as alleged.
The agency concluded that complainant received all of the leave to
which she was entitled. The agency found that complainant failed to
show that the Manager's explanations for her denials of complainant's
leave requests were a pretext for reprisal. Because the record showed
that complainant received Pay-for-Performance compensation, the agency
found no discrimination with regard to this issue.
The Commission finds that claims 3 and 4 were initially raised with the
EEO Counselor with an intent to pursue EEO counseling on March 3, 2005.
Complainant has not shown that he intended to pursue EEO counseling
regarding these matters prior to March 3, 2005. The Commission finds
that claims 3 and 4 were properly dismissed pursuant to 29 C.F.R. �
1614.105(a)(1).
Regarding claims 1 and 2, the initial inquiry in a discrimination case
usually focuses on whether complainant has established a prima facie case,
however following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
The Manager provided explanations for her denials of complainant's leave
requests and explained that Pay-for-Performance compensation was given
to complainant. Some denials were prompted by complainant requesting
LWOP when she still had a positive leave balance. The Manager had already
informed complainant that LWOP would not be approved when a positive
leave balance existed. Other leave requests were denied because they
were structured in a manner to allow complainant to receive holiday pay,
which was a violation of ELM 17.9 Section 434.421. Still another leave
request was denied because complainant requested more sick leave than
she had available and did not indicate that LWOP or annual leave should
be used if her sick leave balance was lower than the requested amount.
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions.
Because the agency has provided legitimate, nondiscriminatory reasons
for its actions, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
were merely a pretext for discrimination. Complainant points to the
treatment by the Manager of leave requests by the comparative Postmaster
as evidence of pretext. The investigation revealed, however, that
the comparative Postmaster was not similarly situated to complainant.
The comparative Postmaster, unlike complainant, had chosen to use
his annual leave and sick leave to carry him through to retirement.
The comparative Postmaster did not submit leave requests like complainant;
nor did he use LWOP as did complainant. Accordingly, complainant has
not shown by a preponderance of the evidence that the agency's reasons
for denying complainant's 3971s were a pretext for discrimination.
Furthermore, complainant has not shown that any agency decision regarding
Pay-for-Performance was motivated by retaliation.
The agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 29, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062665
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036