0120063805
11-19-2007
Theresa A. Montgomery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Theresa A. Montgomery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01200638051
Agency No. 4F-926-0256-05
DECISION
On June 8, 2006, complainant filed an appeal from the agency's May 4,
2006, 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).2 For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Distribution Window Clerk at the agency's North Long Beach Carrier
Annex in Long Beach, CA. The record reflects that on July 11, 2005,
complainant's supervisor (Supervisor 1) spoke to her regarding the
length of her lunch hour. Complainant argued with Supervisor 1 and
walked away while Supervisor 1 was still addressing her. Supervisor 1
subsequently attempted to meet with complainant regarding their exchange,
but complainant refused to speak with her without a union representative
present. Supervisor 1 informed complainant that she was not entitled
to the presence of a union representative because she was only being
provided with instruction, but complainant again walked away while
Supervisor 1 was still speaking to her. Complainant was then placed
on administrative leave pending an investigation into her conduct.
On July 25, 2005, the agency issued complainant a Notice of Fourteen
Day Suspension for insubordination in reference to the incidents that
occurred on July 11, 2005. Complainant was also issued a Letter of
Warning (LOW) by another supervisor (Supervisor 2) on July 25, 2005,
for failure to report to work on March 12 and 14, 2005.
On September 14, 2005, complainant filed an EEO complaint alleging
that she was discriminated against on the basis of reprisal for prior
protected EEO activity (arising under Title VII) when:3
(1) On July 11, 2005, Supervisor 1 sent complainant home on administrative
leave;
(2) On July 25, 2005, the agency issued complainant a Notice of Fourteen
Day Suspension, dated July 21, 2005, charging her with Unacceptable
Conduct/Failure to Follow Instructions/Being Disrespectful to Your
Supervisor/Displaying Disrespectful Behavior/Insubordinate Behavior on
the Workroom Floor; and
(3) On July 25, 2005, the agency issued complainant an LOW, dated July
21, 2005, charging her with Absence Without Leave (AWOL).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ).4 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
she was subjected to retaliation as alleged. Specifically, the agency
found that complainant failed to establish a prima facie case of reprisal.
The agency further found that complainant failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were a
pretext for retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. Complainant argues that her supervisors were aware of her
prior EEO activity and that she was punished unfairly in retaliation for
her EEO activity. Complainant argues that her supervisors' statements
lack credibility and that the fourteen day suspension was unwarranted
because her supervisors allegedly fabricated a seven day suspension that
was previously issued to her. In response to the appeal, the agency
requests that we affirm the agency's final action.
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 EEOC Management
Directive 110, 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").
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
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
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 the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We concur with the agency's determination that it articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
indicated that complainant was placed on administrative leave on July
11, 2005, and issued a fourteen day suspension on July 25, 2007,
for insubordination when interacting with Supervisor 1 on July 11.
Complainant was issued the LOW on July 21, 2007, after an excused extended
absence from work, for being AWOL on March 12 and 14, 2005. Complainant
went home sick on Friday, March 11, 2005, and she failed to report to any
of her supervisors that she would not return to work on March 12 and 14.
The complainant now bears the burden of proving by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
Complainant can do this directly by showing a discriminatory reason
more likely motivated the agency or indirectly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. With respect to claims (1) and (2), complainant argues
on appeal that Supervisor 1's rendition of what transpired on July 11,
2005 is not credible and that the agency violated her rights to union
representation when Supervisor 1 attempted to meet with her. However,
complainant does not contest that she argued with Supervisor 1 and walked
away from Supervisor 1 while she was still speaking to complainant.
Moreover, complainant's statement in the record confirms that she had a
disagreement with Supervisor 1 about the length of her lunch hour that
day and that she refused to meet with Supervisor 1 about the incident.
Regarding claim (3), complainant argues that the LOW was not warranted
because she thought that she had additional time to submit documentation
for absences that were three or more days long. However, the agency's
Employee and Labor Relations Manual clearly states that unscheduled
absences "are any absences from work that are not requested and approved
in advance." Complainant also argues that her supervisors allegedly
falsified records by creating a fictitious seven day suspension which
was issued to her on May 17, 2004. However, the agency submitted a
copy of complainant's notice of seven day suspension from May 2004.
Although complainant challenges her supervisors' credibility, we note that
she did not request a hearing in a timely manner, and the Commission is
limited to a review of the record evidence. As a neutral party, we are
not persuaded, based on the record of investigation, that complainant has
shown, by a preponderance of the evidence, that the agency's articulated
reasons for issuing her the aforementioned disciplinary actions were a
pretext for unlawful retaliation.
Finally, to the extent that complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the agency's
final decision finding no retaliation 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
November 19, 2007
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The agency argues that complainant's appeal was untimely because she
received the agency's final decision on May 6, 2007, but she did not file
her appeal until June 8, 2006. The Commission's regulations require that
appeals to the Commission must be filed within 30 days of receipt of the
agency's dismissal decision or final action. 29 C.F.R. � 1614.402(a).
Upon review, the Commission finds that the record contains insufficient
evidence regarding complainant's receipt of the agency's final action
to conclude that the appeal was untimely. The record only contains a
United States Postal Service "Track/Confirm" print-out, which indicates a
delivery occurred on May 6, 2007 in "Long Beach, CA 90803" without any
further details of the address. Where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). Accordingly, we exercise our discretion and accept
the appeal as timely for a decision on the merits.
3 Complainant's formal complaint also alleged two additional claims,
but the agency dismissed these claims by notice pursuant to 29 C.F.R. �
1614.107(a)(1)-(2). Since complainant does not address these claims on
appeal, the Commission will not review the dismissal. See EEOC Management
Directive 110, Chapter 9, � IV.A. (November 9, 1999).
4 Complainant argues in the record and on appeal that she was unfairly
denied an opportunity to have her case heard before an AJ. However,
complainant concedes on appeal that she did not request a hearing in a
timely manner.
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0120063805
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063805