Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionSep 26, 20140120130168 (E.E.O.C. Sep. 26, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency. Appeal No. 0120130168 Hearing No. 430-2011-00233X Agency No. 1K-234-0018-10 DECISION On October 12, 2012, Complainant filed an appeal from the Agency’s September 20, 2012 final action 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 . For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at an Agency work facility in Norfolk, Virginia. On November 20, 2010, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of her race (African-American) when on July 8, 2010, she was issued a Notice of Removal for Absence Without Authorization and Improper Conduct.1 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, and the AJ held a hearing on August 22, 2012, and issued a decision on September 11, 2012. 1 Complainant initially also claimed discrimination on the bases of her age and sex. However, Complainant clarified at the pre-hearing conference that her claim was solely race discrimination. 0120130168 2 The AJ found that no race discrimination occurred. The AJ noted that Complainant had worked for the Agency for about fifteen years. Complainant had worked at the Agency’s facility in Philadelphia until the facility closed on February 27, 2010. Complainant and several other employees were involuntarily reassigned to the Agency facility in Norfolk. Complainant was approved on November 25, 2009, while working in Philadelphia, for the use of leave under the Family and Medical Leave Act (FMLA) so that she could care for her father in South Carolina, who had Parkinson’s Disease. Complainant was approved to take leave up to six times per year for seven to fourteen days at a time. The AJ stated that the approval further indicated that the estimated interval between absences is about every two months. After working in Norfolk for two weeks, Complainant informed the Manager on March 11, 2010, that she needed to take annual leave for one day to care for her father. Complainant was charged with annual leave on March 15 and 18, 2010. Complainant was placed in an emergency annual leave status from March 19 – 25, 2010. Complainant remained absent from work through May 4, 2010, and was charged with being AWOL from March 26 – May 4, 2010. According to the AJ, Complainant occasionally called the Agency’s automated number to say that she would be out of work for the next seven to fourteen days. The AJ noted that Complainant stated during two of the calls that she was taking FMLA leave. Subsequent to each of these calls, the Agency mailed Complainant a FMLA package for her to complete in order for her FMLA leave request to be approved. Complainant did not submit the FMLA package. The Agency sent Complainant a letter dated April 9, 2010, stating that she would have to receive medical clearance to return to duty. The letter was accompanied by a return to duty package containing the documents Complainant needed to complete in order to return to work. On April 22, 2010, the Agency sent Complainant a letter stating that she had failed to report to work since March 15, 2010, and she had failed to submit either a written request for leave or a written justification for her absences. Complainant sent a fax to the Manager on May 3, 2010, stating she had been caring for her father and had been approved for FMLA leave when she worked in Philadelphia. On May 4, 2010, the Agency sent a letter to Complainant stating that she had not submitted documentation concerning her absence from work since March 15, 2010, and that her time out of work would be charged as AWOL. The Agency also included a demand to work notice in which it informed Complainant that if she failed to return to work on her next scheduled workday following receipt of the letter, she would be subject to discipline up to and including removal from the Agency for being AWOL and for failure to follow instructions related to leave- requesting procedures. On May 7, 2010, Complainant submitted a Form 3971, Request for or Notification of Absence to her Supervisor and Manager. The Form 3971 requested leave without pay for FMLA leave for May 8 – 14, 2010. On May 7, 2010, the Agency notified Complainant that she was to participate in a pre-disciplinary interview on May 14, 2010. Complainant attended the pre- 0120130168 3 disciplinary interview with her Supervisor and was placed in an indefinite AWOL status starting on May 15, 2010. The AJ stated that on July 8, 2010, Complainant was issued a Notice of Removal stating she would be removed on August 13, 2010, for being AWOL and for improper conduct. The Notice of Removal stated that Complainant failed to report for duty as scheduled or notify her Supervisor of her intended absence for the periods of March 20 through April 9, 2010 and April 11 through May 4, 2010. The Notice further stated that Complainant failed to follow proper leave-requesting procedures and failed to provide documentation as required and instructed to support her absence for the period of March 20 through May 4, 2010. The Notice also noted that Complainant had been suspended for seven days for improper conduct in April 2009. 2 The AJ stated that Complainant was charged with being AWOL for 34 consecutive work days. The AJ noted that a Caucasian Mail Processing Clerk had been AWOL for 28 days during the period of April 1, 2010 through May 14, 2010, and was AWOL again for sixteen days during the period of July 17, 2010 through September 3, 2010. This comparison submitted medical documentation to the Agency stating she was incapacitated during her absences. The comparison was not issued a Notice of Removal. Complainant and the comparison reported to different supervisors. The AJ found that Complainant failed to establish a prima facie case of race discrimination. The AJ reasoned that Complainant was not meeting the normal requirements of her position. The AJ observed that Complainant did not report to work for 34 consecutive scheduled work days and did not provide the required documentation to support her continued absence from work. The AJ noted that Complainant’s FMLA leave was supposed to be periods of seven to fourteen days at a time. The AJ further noted that Complainant stated she was missing work not only to care for her father, but also due to relocation hardship which would not be covered by the FMLA. According to the AJ, Complainant was not similarly situated to the Caucasian comparison who was frequently absent from work and not removed. The AJ reasoned that the comparison did not report to the same Supervisor as Complainant and unlike Complainant, provided medical documentation substantiating that she was incapacitated during her absences. Assuming arguendo that Complainant established a prima facie case of race discrimination, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for the Notice of Removal. The AJ stated that the notice of Removal was based on Complainant’s absences, her failure to contact her Supervisor regarding her absences and her failure to follow leave policy. 2 The seven-day suspension issued at Complainant’s prior work facility was reduced to an official discussion pursuant to a grievance settlement. The Supervisor testified that she was aware of the suspension because it was in Complainant’s folder but that she was unaware of the grievance settlement since it was not in Complainant’s folder. 0120130168 4 The AJ found that Complainant failed to establish that the Agency’s explanation was pretext for race discrimination. In terms of Complainant’s argument that other employees who were removed first received progressive disciplinary actions before their removals, the AJ distinguished Complainant’s situation based on there being no other employee who was AWOL for 34 consecutive work days without providing medical documentation. Moreover, the AJ observed that Complainant’s leave request referenced dates after the period covered by the Notice of Removal. With respect to Complainant’s contention that she should not have been charged AWOL because she had been approved to take FMLA leave to care for her father in November 2009, when she was working in Philadelphia, the AJ stated that the Commission lacks authority to decide matters where a Complainant alleges that specific provisions of the FMLA were violated. Further, the AJ observed that Complainant’s absence from work for 34 consecutive days far exceeded her authorization to take FMLA leave for periods of seven to fourteen days up to six times per year. According to the AJ, Complainant’s belief that she was allowed to take fourteen days of leave six times back to back for a total of 84 days is an issue that falls within the jurisdiction of the Department of Labor. The AJ further stated that the rules were followed more strictly in Norfolk than in Philadelphia regardless of employees’ race. The Agency subsequently issued a final action adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the aforementioned Caucasian comparison should be considered similarly situated to her because they both worked for the same Manager. Complainant argues that the Manager was a vital part of the decision-making process for both her and the comparison and that she was the concurring official on her removal. Complainant states that the comparison was not recorded as being AWOL even though she had been out of work for over 21 days without providing documentation. Complainant maintains that unlike other employees, she was not issued progressive discipline. Complainant contends that she followed proper leave procedures. Complainant states that she used the call-in number for employees using unscheduled, emergency absences. Complainant maintains that the FMLA certification that she provided covered the time in question from March through April 2010. Complainant argues that the Manager knew about her responsibility to her father before she left work on March 15, 2010. According to Complainant, her actions in Norfolk were based on past practices for using the FMLA. Complainant claims that she did not think there would be a problem with the FMLA since she had received FMLA in the Agency facility where she worked prior to relocating to the Norfolk facility. In response, the Agency asserts that the Caucasian comparison was not similarly situated to Complainant. The Agency argues that they had different supervisors and that the Manager was 0120130168 5 not involved in the preparatory steps that preceded the issuance of the Notice of Removal to Complainant or the disciplinary decisions rendered in connection to the comparison. The Agency states that unlike Complainant, the comparison submitted medical documentation demonstrating her medical inability to work during the time she was out of work. In support of its decision to remove Complainant, the Agency notes that Complainant acknowledged that she did not complete the FMLA packets sent to her on the two occasions she requested FMLA leave through the automated leave system. The Agency states that Complainant also did not respond to its correspondence demanding her return to work. The Agency maintains that Complainant did not submit evidence that she had received approved FMLA leave for the time she was out of work. The Agency asserts that Complainant admitted that she never used her prior FMLA leave approval for a consecutive month long absence as she did during the period at issue. The Agency notes that Complainant only called the automated leave number on two occasions during the relevant period and that the automated number is only a mechanism to request leave and not an automatic entitlement. Finally, the Agency asserts that it uniformly applied its leave policies to other employees. According to the Agency, the Supervisor issued notices of removal to two other employees, one of whom was Caucasian and the other was African-American. The Agency states that the Manager concurred in a total of five notices of removal that included African-American, Caucasian and Asian employees. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.†Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). ANALYSIS AND FINDINGS We shall assume arguendo that Complainant set forth a prima facie case of race discrimination. The Agency explained that it issued the Notice of Removal based on Complainant being AWOL for 34 consecutive workdays, her failure to contact her Supervisor regarding her absences and her failure to follow leave policy. We find that the Agency has articulated legitimate, nondiscriminatory reasons for issuing the Notice of Removal. 0120130168 6 With regard to Complainant’s arguments to establish pretext, we find that she and the Caucasian comparison were not similarly situated. The comparison had a different Supervisor than Complainant and unlike Complainant, she provided medical documentation showing that she was incapacitated during the period she was not at work. Complainant was afforded the opportunity to support her request for FMLA leave, but she neglected to complete and submit the FMLA package that was sent to her on two occasions. Complainant also did not respond to the Agency’s correspondence demanding that she return to work. Complainant claims that she believed her FMLA leave was approved given that it had been approved in November 2009 when she worked at the Philadelphia facility. However, in that instance, Complainant was approved to utilize FMLA leave for periods of seven to fourteen days up to six times per year. During her tenure at the Philadelphia facility, Complainant never took leave for more than fourteen days at a time to care for her father. Complainant in this instance was marked AWOL for 34 consecutive work days. Complainant has not presented any persuasive evidence to support her contention that she could take fourteen days of FMLA leave six times back to back for a total of 84 days. Given the substantial number of consecutive days that she was AWOL, Complainant’s situation was not comparable to other employees who received progressive discipline. We find that Complainant failed to establish that the Agency’s explanation for the Notice of Removal was pretext intended to mask discriminatory intent. CONCLUSION For the reasons set forth above, we AFFIRM the Agency’s final action. 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, 0120130168 7 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 Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date September 26, 2014 Copy with citationCopy as parenthetical citation