0120140666
05-23-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120140666
Agency No. 4B-110-0029-13
DECISION
Complainant timely filed an appeal from the Agency's 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.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race, sex, and age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Corona Station in Elmhurst, New York. Report of Investigation (ROI), at 52. On December 15, 2012, Complainant's first-level supervisor (S1) disapproved Complainant's request for emergency annual leave for December 11, 2012. Id. at 69. Complainant reportedly failed to submit documentation to support her absence, and was marked absent without leave (AWOL) for that day. Id. Also, on December 15, 2012, S1 placed Complainant on Emergency Off-Duty Placement leave status. Id. at 70. In a letter to Complainant dated December 15, 2012, S1 noted, "you threw your IMDS Scanner and Time Card at me. Id. You struck me with these items. You are in an Emergency Placement until further notification." Id. The Agency's Postal Investigation Service subsequently conducted an investigation into the matter. Complainant, S1, and a coworker submitted sworn statements for the Agency's Inspection Service. Id. at 74-82. In her sworn statement, the coworker disputed S1's version of events, noting that Complainant did not throw the items at S1 as he alleged. Id.
On May 1, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and age (61) when:
1. she was not paid for the Emergency Annual Leave that she requested on December 11, 2012; and
2. on December 15, 2012, she was put on Emergency Off-Duty Placement for four days without pay.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
Specifically, the Agency found that Complainant failed to establish a prima facie case of discrimination based on her protected classes with regard to her claim that she was not paid annual leave on December 11, 2012. The Agency noted that Complainant failed to identify any similarly-situated employee outside her protected classes who was treated more favorably. The Agency also found that Complainant failed to establish a prima facie case of discrimination with respect to her claim that she was placed in an emergency off-duty status beginning December 15, 2012. The Agency noted that there were no employees treated differently than Complainant under similar circumstances. The Agency also found that it had articulated legitimate, nondiscriminatory reasons for its actions. In particular, the Agency noted that Complainant called in the automated "eRMS" system and requested emergency annual leave. The Agency noted that eRMS system advised Complainant that she would need documentation to support the leave request. The Agency noted that S1 later reminded Complainant that she needed to provide documentation, but Complainant responded in an unprofessional manner, throwing her time card and scanner that struck S1 on the arm. The Agency noted that, after being hit by Complainant's time card and scanner, S1 advised Complainant to leave the building and that she would be placed in an emergency off-duty status. The Agency found that Complainant failed to establish that the Agency's reasons pretext for discrimination.
CONTENTIONS ON APPEAL
Neither party has filed a brief on appeal.
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 Chap. 9, � VI.A. (Nov. 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
Disparate Treatment
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). Complainant must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1 explained that Complainant was not paid for the emergency leave because she failed to provide documentation to support her absence. ROI, at 62-63. S1 also explained that Complainant was put on Emergency Off-Duty Placement status because she threw her timecard and scanner at him, hitting his arm. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant avers that S1 lied that she threw her scanner and timecard at him. Complainant avers that a coworker also stated that S1 lied about the incident that led to her placement in emergency leave status. Complainant further states that she called in advance to request the personal emergency leave. Complainant states that, at the time she requested the leave, she had 577 hours of annual leave and an excellent work record. Complainant additionally believes that Asian co-workers are treated more favorably.
Notwithstanding Complainant's contentions, we find that she has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination based on her protected classes. We can find no evidence here that S1's actions towards Complainant were motivated by discriminatory animus based on her protected classes. Complainant does not dispute that she failed to provide documentation to support her absence. We note that Complainant did not request a hearing, so we do not have the benefit of an AJ's credibility determinations after a hearing; we can only evaluate the facts based on the weight of the evidence presented. As such, we find that Complainant has not established that she was subjected to discrimination based on race, sex, and age as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
May 23, 2014
Date
2
0120140666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140666