0120102198
09-14-2010
Frances C. Foehlinger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Frances C. Foehlinger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120102198
Hearing No. 530-2009-00137X
Agency No. 4C-176-0057-08
DECISION
On April 28, 2010, Complainant filed an appeal from the Agency's March 21, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the final Agency decision properly found that the Agency did not subject Complainant to unlawful discrimination when it denied her request to not work on Saturday, August 23, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time City Carrier at the Agency's Lancaster, Pennsylvania Carrier Annex. In this position, Complainant had a work schedule that provided for Thursdays and Sundays off. On October 25, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability when on or about August 21, 2008, the Agency denied her request to not work on Saturday, August 23, 2008.
In an investigative affidavit, Complainant stated that she presented a PS Form 3189, Request for Temporary Schedule Change for Personal Convenience, to a supervisor (S1) on July 28, 2008, requesting a Saturday off. Complainant further stated that S1 informed her that he would have to check with the Postmaster (PM) regarding her request. Complainant asserted that although S1 disapproved her request for a Saturday off, PM also made the decision to deny her request due to "service needs." Complainant also stated that she found the reason she was given for the denial of her request unacceptable because PM advised her that he could easily replace her.
S1 (male, unknown disability status or EEO activity) stated that he did not recall Complainant presenting a PS Form 3189 to him on or about August 23, 2008. S1 stated that he neither approved nor disapproved Complainant's request to have a Saturday off because another Supervisor signed the form.1 S1 stated that Complainant's request to have Saturday off on or about August 23, 2008, was denied due to operational needs. S1 further stated that supervisors sign the forms reflecting whether the Postmaster approved or denied requests. S1 stated that he recalled that on the Saturday in question, the facility experienced problems covering Express Mail because of staffing issues.
PM (male, unknown disability status or EEO activity) stated that on August 23, 2008, the maximum numbers of carriers were already off, and therefore, Complainant's request was denied due to operational needs. PM further stated that in his capacity as installation head, he reviews all PS Forms 3189 with the supervisors. He also stated that he was informed that there was no coverage to replace Complainant for the date she requested off. PM stated that he did not tell Complainant he could replace her at any time.
Another supervisor (S2) (female, unknown disability status and EEO activity) stated that Complainant presented her with a PS Form 3189, on which she requested to not work on Saturday, August 23, 2008. She stated that she did not approve the request because of the Agency's operational needs. She further stated that she consulted with PM prior to disapproving Complainant's request.
The record also contains other PS Forms 3189 from Complainant. A review of these PS Forms 3189 for Complainant indicates she requested a temporary change of schedule for June 5, 2008, July 21, 2008, July 12, 2008, and August 23, 2008. All requests were approved except for the request for August 23, 2008. Affidavit C Attachment, p. 5-9. Additionally, the TACS Employee Everything Reports for Complainant for June 2008 through September 2008 reveal that her non-scheduled days were Fridays and Sundays, and during this period, she used Annual Leave on Saturdays, July 19, 2008, August 30, 2008, and September 6, 2008.
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 but subsequently withdrew her request. Consequently, 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 determined that Complainant failed to prove that she is an individual with a disability or show that the Agency's explanations were a pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency regarded her as disabled. She further maintained that she has not had a scheduled Saturday off work or two consecutive days off in over two years. The Agency did not make any arguments on appeal.
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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of disparate treatment on the basis of sex, a Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009).
In order to establish a prima facie case of disability discrimination, Complainant must demonstrate that: (1) she is an "individual with a disability;" (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
For the following reasons, we find that Complainant failed to establish a prima facie case of discrimination based on sex and disability. In reaching this conclusion, we note that Complainant suffered an adverse action; and is a member of a protected group, by virtue of her gender. We have also assumed, arguendo, that Complainant is a qualified individual with a disability. Complainant alleged that one employee and three male employees were treated more favorably than she was with regard to requests to change their work schedules. However, the record reveals that two of the employees (both males) report to a different supervisor at another facility than Complainant. The record further reveals that a third comparative employee (male) was temporarily given a Monday through Friday schedule because he was the union president and needed to work with the PM, who also had a Monday through Friday schedule. The fourth employee (female) is in a different craft (Mailhandler) and reports to a different supervisor than Complainant.
It is well-established that in order for comparative evidence relating to other employees to be considered relevant, all relevant aspects of the employees' work situation must be identical or nearly identical, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same time periods. See Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (March 13, 2003); Stewart v. Dep't of Defense, EEOC Appeal No. 01A02890 (June 27, 2001); Jones v. U.S. Postal Serv., EEOC Appeal No. 01983491 (April 13, 2000). Thus, we find that the employees cited by Complainant were not similarly situated to her during the relevant time period. Complainant has provided no other evidence from which an inference of disability or sex discrimination can be raised. Consequently, we find that the Agency properly found no discrimination because Complainant failed to establish a prima facie case of sex or disability discrimination.
CONCLUSION
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 decision for the reasons set forth in this 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
_____9/14/10_____________
Date
1 However, the record contains a copy of a PS Form 3189, Request for Temporary Schedule Change for Personal Convenience. Affidavit A Attachment, p. 13. The Form was signed by Complainant on July 28, 2008, and stated that Complainant requested that her nonscheduled days be changed from Sunday and Thursday to Saturday and Sunday, from August 23, 2008 through August 28, 2008. S1 signed the Form on August 4, 2008, disapproving Complainant's request due to "service needs."
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0120102198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102198