01a52926
09-30-2005
Sahendrika N. Solanki, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sahendrika N. Solanki v. United States Postal Service
01A52926
September 30, 2005
.
Sahendrika N. Solanki,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52926
Agency No. 4K-230-0215-04
DECISION
Complainant filed an appeal with this Commission from a February 4,
2005 agency decision, finding no discrimination.
In her complaint, complainant alleged that the agency discriminated
against her on the bases of race (Indian), national origin (India),
and color when:
1. On May 19, 2004, complainant was issued a letter of warning.
2. On an unspecified date(s), the Supervisor of [Customer Service](SCS)
provided negative information and hindered complainant's transfer.
3. On an unspecified date(s), the SCS kept watching complainant
constantly.
4. On an unspecified date(s), the SCS did not convey [complainant's]
message and/or transfer her call to the Postmaster.
5. On an unspecified date, complainant and other PTF [part time
flexible] Clerks were scheduled a two-hour work schedule on Sunday.
At the conclusion of its investigation, the agency informed complainant
of her right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a decision by the agency. When complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), the agency issued its decision pursuant to 29 C.F.R. �
1614.110(b).
A letter of warning, dated May 19, 2004, is contained in the record.
The letter reflects that complainant was issued the letter because she
was absent without leave (AWOL) on May 10, and May 11, 2004, having
failed to report to work as scheduled. The letter also reflects that
complainant was scheduled to work on May 10, and May 11, 2004, and
complainant's failure to report to work was in violation of the terms
of section 666.81 of the Employee Labor and Relations Manual (ELM).
The record also contains letters of warnings issued to employees, not
of complainant's race, for unsatisfactory attendance and AWOL.
The record contains a copy of a schedule posting which reflects
that complainant was scheduled to work on May 10, and May 11, 2004.
The record also contains a leave request which discloses that complainant
had requested leave for May 10, and May 11, 2004, that the leave request
was received by complainant on May 8, 2004, and that her leave request
was not approved. In the affidavit of the SCS, the SCS stated that in a
pre-disciplinary interview with complainant before the issuance of the
letter of warning, complainant told her that it did not matter whether
her leave request was approved or disapproved because she had to go and
see her children.
The record does not contain an affidavit from complainant. The record
reflects that two requests for affidavits were sent to complainant by
the complaint investigator and that complainant did not respond or submit
an affidavit as requested.
As noted earlier, the record contains the affidavit of the SCS.
The SCS stated that she answered the telephone when complainant called
to speak to the Postmaster. The SCS stated further that she informed
complainant that the Postmaster was on the telephone and that she would
tell him to return complainant's call which, the SCS stated, she did.
The SCS stated that following complainant's telephone call, the Acting
204B Supervisor at the Mechanicsville Post Office where complainant was
working, called the SCS and told her that the reason complainant wanted to
talk to the Postmaster was because complainant wanted a transfer to the
Sandston Post Office. The SCS stated that the Acting 204 B Supervisor
put complainant on the line and the SCS told complainant that she had
given the Postmaster her message. The SCS stated that complainant told
her that the Sandston Postmaster had already told her that he would
accept her transfer as soon as their Postmaster gave her a release date.
The SCS stated in her affidavit that she again conveyed complainant's
message to the Postmaster and that the Postmaster told her to call the
Sandston Post Office and tell the Sandston Postmaster that he would
release complainant. The SCS also stated that she called the Sandston
Postmaster to tell him that complainant would be transferred but the
Sandston Postmaster told her that he had not told complainant that he
would accept her transfer, that he did not have an opening at the time,
and that when he did have an opening, he had received another transfer
request months prior to complainant's request, and that he would have
to consider the prior transfer request if an opening became available
for a transfer. The SCS stated that the Sandston Postmaster asked her
why complainant was unhappy and she told him that she had heard that
complainant did not like working split shifts, Sundays, and holidays.
The SCS also stated that the Sandston Postmaster told her that complainant
had been to his office complaining about those same issues. The SCS
stated that she told the Sandston Postmaster that complainant had been
placed on absence without leave a few weeks prior to his call. She also
stated that complainant went to the Sandston Postmaster's office after
the SCS's conversation with him and told him that she believed that she
was going to receive a letter of warning for being on AWOL.
The SCS stated in her affidavit that another employee (Employee A)
requested a transfer and the Postmaster of the office to which Employee
A wanted to transfer called to talk to her about Employee A's attendance.
To establish a prima facie case of race, color, or national origin
discrimination, a complainant must show the following: (1) complainant was
a member of the protected class; (2) an adverse action was taken against
complainant; (3) a causal relationship existed between complainant's
membership in the protected class and the adverse action; and (4)
other employees outside of complainant's protected class were treated
differently.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or in
reprisal is unlawful. To establish a prima facie case of harassment,
a complainant must show that: (1) s/he belongs to a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment and (5) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990). The burden
of persuasion that the agency discriminated against complainant always
remains with complainant.
As an initial matter, the Commission notes that, because this is an
appeal from an agency 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. See 29 C.F.R. � 1614.405(a).
Regarding claim 1, we find that the agency has provided a legitimate,
nondiscriminatory reason for issuing the letter of warning, i.e.,
complainant failed to report to work as scheduled. Further,
the Commission concludes that complainant has failed to show by a
preponderance of the evidence that the agency's actions were pretext
for discrimination.
Regarding claim 2, we find that complainant has failed to establish a
prima facie case of discrimination. She has not shown that others outside
of her protected groups were treated more favorably than she was treated.
Moreover, there is no evidence that there were openings at the Sandston
Post Office. Also, there is no evidence that complainant was not offered
or denied a transfer to the Sandston Post Office as a result of negative
information provided to the Sandston Post office. Even assuming that
complainant has established a prima facie case of discrimination regarding
claim 2, the record reveals that the information about complainant
was provided to the Sandston Postmaster because he inquired as to the
reason why complainant was seeking a transfer. Accordingly, the agency
has articulated a legitimate, discriminatory reason for providing
information to the Sandston Postmaster and complainant has failed to
show that the agency's reason was mere pretext to mask discriminatory
animus. The record reflects that complainant herself had already told
the Sandston Postmaster that she believed that she would be receiving
a letter of warning and that she did not like working swing shifts,
Sundays, and holidays.
Regarding claim 5, we find that complainant has not established a prima
facie case of discrimination. She has failed to show that others who
were similarly situated and not in her protected classes were treated
more favorably by not being scheduled to work on Sunday.
All that remains of complainant's harassment claim are the incidents
alleged in claims 3 and 4. The Commission finds that claims 3 and
4 fail to establish a prima facie case of discriminatory harassment.
Complainant has not shown that the harassment complained of was based
on her protected classes or that the alleged harassment had the purpose
or effect of unreasonably interfering with her work environment and/or
creating an intimidating, hostile, or offensive work environment.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
September 30, 2005
__________________
Date