Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 28, 20150120133236 (E.E.O.C. Jan. 28, 2015) 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 (Southwest Area), Agency. Appeal No. 0120133236 Hearing No. 510-2012-00345X Agency No. 1G-321-0008-12 DECISION Complainant appeals to the Commission from the Agency’s final decision dated July 9, 2013, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND In her complaint, dated March 15, 2012, Complainant alleged discrimination in reprisal for prior EEO activity when: (1) Since September, 2011, and continuing, she was subjected to harassment in that her attendance was monitored with continuous discussions about her attendance; (2) On December 29, 2011, her Family & Medical Leave Act (FMLA) absences were changed by the manager; and (3) On January 4, 2012, she was given a pre-disciplinary interview and subsequently on January 10, 2012, she was issued a notice of removal. After completion of the investigation of the complaint, Complainant requested a hearing but later withdrew the request. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. 0120133236 2 ANALYSIS AND FINDINGS 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 Chapter 9, § VI.A. (November 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”). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue, Complainant was a Mail Processing Clerk, PS-06, at the Jacksonville P&DC in Jacksonville, Florida. With regard to claim (1), Complainant’s manager indicated that during the relevant time period at issue, Complainant filed numerous FMLA leave requests, some of which were denied by an FMLA coordinator, causing mass confusion concerning her leave status. The manager stated that she did talk with Complainant in order to clarify her absences and denied monitoring her attendance or giving “continuous discussions” about her attendance as she alleged. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances concerning this matter or that any alleged Agency action was motivated by discrimination. With regard to claim (2), the manager denied changing Complainant’s FMLA absences as alleged. Specifically, the manager stated that some of Complainant’s requested FMLA absences were changed to non-FMLA only because an FMLA Coordinator denied her FMLA request.1 The manager denied she discriminated against Complainant as alleged. With regard to claim (3), an Acting Attendance Control Supervisor indicated that he gave Complainant the pre-disciplinary interview and the notice of removal at issue because she failed to be regular in attendance. The Supervisor stated that although Complainant previously signed a Last Chance Agreement on October 15, 2010, as a settlement to a removal she had previously been given regarding her attendance, she failed to maintain regular attendance pursuant to the Agreement.2 1 We note that Complainant did not claim that the Agency violated the FMLA. The Supervisor indicated that at the time of the removal notice at issue, he was notified by FMLA Office that Complainant had numerous non-FMLA absences from October 3, 2011, to December 30, 2011. The record indicates that the most of these absences, except a few, were later approved for FMLA leave when the Human Resources Shared Service Center corrected its prior errors in its electronic management leave system. On appeal, the Agency indicates and Complainant acknowledges that all her FMLA leave requests 2 We note that Complainant’s Last Chance Agreement is not a live issue in this case. 0120133236 3 made during the relevant time period at issue, i.e., October – December, 2011, were approved but her absence dates of October 3, 2011, and December 30, 2011, were not approved for FMLA leave. Upon review, we note that there is no evidence that the Human Resources Shared Service Center’s mistake concerning Complainant’s FMLA leave request was motivated by discrimination. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. With regard to her claim of harassment, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. Furthermore, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.3 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 3 Although the Agency, in its final decision, dismissed claims (1) and (2) for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), we need not address such dismissal since we find no discrimination concerning the matters. 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. 0120133236 4 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 Date January 28, 2015 Copy with citationCopy as parenthetical citation