0120130213
02-25-2013
Anetheris V. Reed, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Anetheris V. Reed,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120130213
Agency No. IE-642-0004-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 18, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Kansas City, Kansas NDC.
On December 23, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her in reprisal for prior protected activity when:
1. on October 8, 2011, she was not getting annual leave in lieu of holiday; and
2. during Pay Period 25 in 2011 (November 19, 2011 through December 2, 2011), her leave was not used correctly.
After the investigation of the instant formal complaint, 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). Complainant requested a hearing. By an Order entitled "Order of Dismissal," the AJ cancelled the hearing request on the grounds that Complainant made an untimely request for a hearing. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its September 18, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming, for the sake of argument only, that Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisor stated that in regard to claim 1, Complainant submitted a PS Form 3971 "Request for or Notification of Absence" requesting leave for October 8, 2011 (Columbus Day holiday) in exchange for holiday pay. The supervisor stated that she entered the information in the Time and Attendance Collection System (TACS). The supervisor also stated that she coded Complainant's leave as annual leave in exchange for holiday pay for October 8, 2011, and included the clock rings and PS Form 3971 for that day.
Further, the supervisor stated that she noted Complainant had used 2.5 hours of annual leave for October 8, 2011, and she was not sure if it may have affected the exchange leave for October 8, 2011. Specifically, the supervisor stated "I did put [Complainant] in for the Holiday Exchange, but I am not sure what happened. She did take 2.5 hours of annual leave on 10/8/11. I am not sure if that affected the exchange leave. I contacted Mid-America TACS to inquire about the Holiday Exchange rule and how it works. I have included a copy of their reply. My understanding is that the employee must work eight hours to receive eight hours Exchange Leave."
Regarding claim 2, the supervisor stated that she submitted Complainant's PS Form 3971 for November 19, 25, 26 and 29, 2011 "showing the leave that she was taking at that time." The supervisor stated that during the relevant period, Complainant had zero hours of annual leave, 8 hours of sick leave, and 357 hours of Leave Without Pay (LWOP).
The supervisor stated that she approved Complainant's PS Form 3971 requests and entered the 028 code into the TACS so that Complainant would be given annual leave in exchange for holiday pay. The supervisor further stated that Complainant "did not show me her pay stub for the dates that she is claiming to not receive the exchange leave. I do not know whether or not she received it." The supervisor stated that she relied on Article 11.3 of the National Postal Mail Handler Union Agreement when she applied Complainant's leave for Pay Period 25 of 2011. The record reflects that Article 11.3 states "an employee who work their holiday may, at their option, elect to have their annual leave balance credited with up to eight (8) hours of annual leave in lieu of holiday leave pay."
The Manager, Distribution Operations (Manager) stated that he supervises the supervisor who, in turn, supervises Complainant. The Manager further stated that the supervisor is responsible for any leave exchanges that have taken place with Complainant's pay but from looking at the pay records, Complainant "is claiming she was put in for leave exchange by her supervisor 11/24/2011. The employee called in the day after her holiday Leave Without Pay which could have caused her not to be paid for her holiday. She has to be in a pay status the day after her holiday. [Complainant] was compensated for the day she worked 11/24/2011."
Further, the Manager stated that during the relevant period, Complainant "WAS NOT in a pay status. She was compensated for the hours she worked. ERMS system recognized it [emphasis in its original]." The record reflects that the Manager stated that he relied on Article 11.2 of the National Postal Mail Handler Union Agreement which indicates to be eligible for holiday an employee must be in a pay status the last hour of the employee's scheduled workday prior to or to the first hour of the employee's scheduled workday after the holiday.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.1
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
February 25, 2013
__________________
Date
1 On appeal, Complainant does not challenge the January 12, 2012 partial dismissal issued by the agency regarding another claim (that she was discriminated against on the basis of reprisal for prior EEO activity when she was not paid higher level pay for work performed during Pay Periods 1 through 18 of 2011 (12/16/10-8/26/11)). Therefore, we have not addressed this issue in our decision
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0120130213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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