0120112605
06-04-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112605
Hearing No. 490-2009-00120X
Agency No. 4G-720-0113-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 10, 2011, final order 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 Agency's final order which found no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee City Carrier at the Agency's North Little Rock facility in Little Rock, Arkansas. Complainant was employed with the Agency from January 19, 2008, until her termination on September 9. 2008. The USPS/NALC Joint Contract Administration Manual ("JCAM") provided that transitional employees were not entitled to progressive discipline and, transitional employees could be terminated at any time prior to completion of a 359 day term.
The record reveals that from July 17, 2008, to August 9, 2008, Complainant was absent five days and late for work two days for a total of more than 34.85 hours. Specifically Complainant's absences were noted as follows: July 17, 2008, 8 hours Full Day LWOP in lieu of sick leave; July 26, 2008 7.8 hours Work hours (begin time 9.75); August 2. 2008, 8 hours Full Day LWOP - other; August 4, 2008, 7.52 hours Work hours (begin time 9:10); August 7, 2008 1.98 hours Work hours 2.0 Hours Part Day LWOP 2.0 hours Guarantee Time; August 8, 2008, 8.00 hours Full Day LWOP; August 9, 2008 - 8.00 hours Full Day LWOP.
Complainant's first and second-line supervisor discussed with Complainant her irregular attendance and the requirement to be regular in attendance. Also, on August 14, 2008, the Acting Attendance Control Supervisor conducted an investigative interview regarding Complainant's attendance. Based on the investigation, the Acting Attendance Control Supervisor determined that a letter of warning was warranted. Thereafter, on August 19, 2008, a Letter of Warning was issued to Complainant regarding her unsatisfactory attendance.
On August 20, 2008, Complainant was told by her supervisor that she was needed at work on the following day. Complainant informed him that she had an appointment on the morning of August 21, 2008, but agreed to report to work immediately after the appointment. She was told to call if anything went wrong with the appointment.
On August 21, 2008, Complainant failed to call to inform her supervisor that she would be delayed or that she would not be reporting to work. When Complainant had not called or reported to work by 12:00 p.m., her supervisor began calling her. At approximately 3:00 p.m., Complainant was reached by telephone at her home. Complainant's supervisor asked her if she intended on reporting to work that day and Complainant responded that she would not be reporting to work. Complainant was told by her supervisor that her absence would be considered as Absent Without Leave (AWOL).
On August 27, 2008, an investigative interview was conducted with Complainant and her Union Steward regarding Complainant's failure to report to work. On September 9, 2008, Complainant was issued a letter of termination because she failed to report to work on August 21, 2008, as instructed. As a transitional employee who had not completed her term of 359 days, Complainant was not entitled to progressive discipline and could be immediately terminated. Complainant was terminated for unsatisfactory attendance and failure to follow instructions.
On December 19, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (female-pregnancy) when:
1. On August 19, 2008, she was issued a Letter of Warning; and
2. On September 9, 2008, she was terminated from her employment.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing following the Agency's Motion for Summary Judgment and the Complainant's response. Initially, the AJ noted that the comparators offered by Complainant were not similarly situated to her as one female employee did not have an attendance problem the other female employee was a part-time flexible city carrier who was on Worker's Compensation (limited duty) but was not pregnant. And, the AJ found that the male comparator that she offered did not have unsatisfactory attendance. The AJ found that Complainant failed to show that she established a prima facie case of sex/pregnancy discrimination as she failed to show that any other similarly situated employee was treated more favorably. The AJ found that Complainant was not satisfying the normal requirements of her position because of her attendance; and noted that there was an overall expectation by the employer that an employee would be regular in attendance.
Moreover, the AJ found that even assuming arguendo that Complainant was able to establish a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for it actions, namely, that Complainant was issued a Letter of Warning based on her instances of lateness and absences which she did not dispute. Further, the AJ found that Complainant was terminated from her employment because she failed to follow instructions to come to work on August 21, 2008, and was considered AWOL. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency requests that its final order finding no discrimination be affirmed.
ANALYSIS AND FINDINGS
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 order. We find the AJ properly issued a decision without a hearing because there are no material facts at issue. We agree with the AJ that assuming arguendo that Complainant established a prima facie case of sex-pregnancy discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that Complainant had an unsatisfactory attendance record and therefore, was issued a Letter of Warning, and she was terminated because she failed to come to work after being requested to do so. The Commission notes that Complainant failed to articulate why she believed her pregnancy was at issue. The record reveals that Complainant learned of her pregnancy on July 17 or 18, 2008, the Acting Attendance Control Supervisor, indicated that he issued the Letter of Warning based solely on Complainant's attendance record and not based on her sex or pregnancy because he was not aware that she was pregnant. Further, with regard to her termination on September 19, 2008, Complainant argued that management knew that if she was not pregnant she would have come to work and she indicated that the absence on August 21, 2008, was not planned. We find her statements support management's argument that Complainant failed to call to let management know that she was not coming in. We note that Complainant does not dispute this. We agree with the AJ that Complainant provided no evidence which showed that discriminatory animus was a factor in this case or that the Agency's nondiscriminatory reasons were pretext for discrimination.
Accordingly we find that a preponderance of the record evidence does not establish that discrimination occurred. Therefore, the Commission AFFIRMS the Agency's final order which found that Complainant failed to demonstrate that she was subjected to 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
_6/4/14_________________
Date
2
0120112605
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112605