0120132003
06-27-2013
Bobbi J. Nelson-Shinn, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Bobbi J. Nelson-Shinn,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120132003
Hearing No. 443-2012-00136X
Agency No. 4E500004612
DECISION
On January 9, 2013, Complainant filed an appeal from the Agency's November 19, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Services/Distribution Associate at the Agency's Cedar Falls Post Office facility in Cedar Falls, Iowa.
On January 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On August 11, 2011, Complainant received a seven-day suspension; and
2. On July 23, 20121, Complainant was terminated.
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 requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to respond to both the Agency's discovery request and its Motion for Sanctions. The AJ remanded the complaint to the Agency which issued a final decision (FAD) 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 found that Complainant established a prima facie case of reprisal but not sex discrimination because Complainant was unable to identify otherwise similarly situated employees who were treated differently. The Agency further found that Agency officials articulated legitimate nondiscriminatory reasons for their actions and that Complainant was suspended for Unacceptable Attendance and terminated for Unacceptable Attendance and Failure to Follow Instruction. The Agency further found that Complainant failed to show that such reasons were a pretext for discrimination.
ANALYSIS AND FINDINGS
We note as an initial matter that Complainant on appeal has requested another extension of time to file a brief or in the alternative to remand the matter back to the Agency for a supplemental investigation. With regard to the supplemental investigation, we shall address that matter below. With regard to the request for an extension to file a brief, we note that on February 21, 2013, Complainant requested and was granted an extension to March 25, 2013. Furthermore, in her March 25, 2013 request for another extension, Complainant has laid out her arguments on appeal in sufficient detail so that we consider the extension request to constitute Complainant's appeal brief. Accordingly, the request for an extension is denied.
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").
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the Agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the Agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its action. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). With regard to the seven day suspension, Complainant received the notification dated August 7, 2011 which stated that she was being suspended for Unacceptable Attendance, noting that between June 2, and July 22, 2011 she had: twice been charged leave for being late, for a total of almost four hours; had been charged eight hours of Annual Leave in lieu of sick leave on one other occasion; had been charged just under five hours of Emergency Annual Leave on another occasion; and that she had already received a Letter of Warning in May 2011 for Unacceptable Attendance. See Report of Investigation (ROI) Exhibit 2.
With regard to the termination, the July 22, 2012 Notice of Removal stated that Complainant was being removed for Unacceptable Attendance/Failure to Follow Instructions. The removal notice noted that Complainant had been issued a 14-day suspension in February 2012 and that between June 2 and July 13, 2012 Complainant had been charged with Leave Without Pay (LWOP) for being late on five occasions, for a total of just under half an hour, and Absent Without Leave (AWOL) for one-and-a-half hours on one occasion. The Notice further noted that Complainant had previously been told that since she was the opening employee she was to call and notify a supervisor if she was going to be absent or late but that on July 7, 2012, she did not call in until one-and-a-half hours after the start of her shift. See Supplemental ROI, Exhibit 3.
The Agency having articulated a legitimate nondiscriminatory reason for its action, to ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); Hicks, 509 U.S. 502 at 511; Burdine, 450 U.S. at 252-52; Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Following a review of the record, we find that Complainant has failed to meet this burden. Complainant maintains that other employees with worse attendance records than hers did not receive seven-day suspensions and were not terminated from employment with the Agency. With regard to the seven-day suspension, Complainant named two male coworkers (CWs 1 & 2) who she maintained were late for work either "everyday [sic]" or "on average on [sic] 3-4 times a week," ROI, Affidavit A, p. 5. Complainant further averred that CW2 had also "called in sick 5 times within 9 months." Id. In addition Complainant averred that another male employee (CW 3) would take "anywhere from 11/2, 2, 21/2, to 3 hours" for lunch and "nothing was done or said to him." Id., p. 6. Finally, Complainant named two more male employees (CW's 4 & 5) whom she claimed engaged in "tardiness on a daily basis" but were not disciplined as she was "because they are male." Id.
The Agency argued that none of these comparators were similarly situated with Complainant. Complainant was a Sales and Services/Distribution Associate, while CW1 was a Building Maintenance Custodian, CW2 was a Postal Support Employee, CW4 was a Rural Carrier and CW5 was a Part Time Flexible City Carrier. In addition, the Agency denied that any of these comparators engaged in the same conduct as did Complainant. The Postmaster (PM: male) who concurred with Complainant's discipline averred that CW1 had "a minor attendance issue which was addressed in the form of a job discussion on July 1st, 2011. He had only one additional unscheduled absence from that day on until his retirement" in October 2011. Affidavit B, p. 2. According to PM's own evidence, CW1 "had a total of 7 unscheduled absences" until October 2011. Id., pp. 17-37.
Complainant's Supervisor (S: male) denied Complainant's claim that CW2 "was late 3-4 times a week and called in sick 5 times in 9 months and no action was taken." Instead, S averred that CW2 was "late 3 times in 3 months. Halfday [sic] sick leave, [h]e was also given a DAP (letter of Warning) on 3/6/2012, for sick call in on 2/18/2012 and being late .10 on 3/5/2012". Affidavit C., p. 7. During the Supplemental Investigation, S averred that CW2 had been late on five occasions between October 31, 2011 and March 5, 2012 and that he received a Letter of Warning for his attendance on March 8, 2012. Supplemental Report of Investigation (SROI), Affidavit B, p. 7. S further averred the start times of CWs 2 & 3 would fluctuate because of the nature of their jobs. See id.
PM next averred that CW3 "had a minor attendance issue back in 2009 and 2010 with tardiness. After a job discussion with [him], his attendance cleared up and has not been late to work even once in the last 5 months." ROI, Affidavit B., p. 2. With regard to Complainant's claim about CW3 taking long lunches, PM further averred that because CW3's position was that of a Clerk, he was permitted to take:
a longer or shorter lunch period [which] was an 'option' that we allowed all clerks to do. [CW3]'s job bid showed a scheduled 1 hour lunch period. [CW3] chose to take longer lunch breaks which would allow him to work later in the day when drop shipments would arrive and then he could distribute the mail around the office.
Id., p. 10.
S averred that he knew of no attendance problems or issues with regard to CWs 4 & 5. See ROI, Affidavit C, p. 7.
Complainant maintains that her absences were all "approved" under the Family Medical Leave Act (FMLA). PM, however, averred that Complainant:
has never had her tardinesses [sic] as FMLA protected. She never presented us with any documentation to backup her claim nor did she ever ask for it the [sic] absences [sic] to be FMLA protected until after the Disciplinary hearing was completed. She stated that she was going to go back to her doctor and ask him to back date the FMLA paperwork to cover "all" tardinesses [sic]. Management has not seen, even 'til this date, any proof that this has occurred.
Affidavit B, p. 9.
A review of Complainant's Requests for or Notification of Absence submitted for June 2 and June 11, 2011, and for July 15 and July 22, 2011 show that Complainant requested FMLA leave but that, while leave was granted, on all four forms the box marked "approved, not FMLA" was ticked. See id., pp. 225-6.
With regard to her termination, Complainant argued that PM was removed by the Agency for altering clock rings and that "should show how untrustworthy he is." SROI, Affidavit A., p. 11. Complainant further provided information regarding the alleged start times of various coworkers but she does not provide any explanation for the significance of this information. See id., pp 13-4. Complainant provided Agency records showing that CW1 was a few minutes late every day for five days in a row, see id, pp. 22-3, and additional attendance records for CWs 2&3 that cannot be deciphered. See id., pp. 24-9.
On appeal, Complainant asks that the matter be remanded for an additional investigation to determine whether or not she was in FMLA status in June and July 2012, which is the most recent time-period mentioned in the Notice of Removal. Complainant maintains that "the absenteeism should have been FMLA protected and therefore not utilized for disciplinary purposes against her." Complainant's Appellate Brief, p. 2. Complainant points to an exhibit in the SROI to show that "she was, . . . , covered by FMLA Status with the Agency for the time periods 8/8/2011 through 3/26/12 and 4/23/12 through 1/11/13." Id., pp. 2-3. Complainant further argues that "Consequently the above referenced statements of [PM] as to why [Complainant] was not granted FMLA for the days in question are not true and raise a serious question as to the validity of the Agency's stated reasons such discipline was issued." Id.
With regard to PM's testimony, we note that such testimony addressed Complainant's attendance issues in June and July 2011, issues that led to her seven-day suspension. PM's testimony, however, did not address events in June and July 2012 or the reasons for Complainant's July 2012 termination. In fact PM provided no testimony addressing Complainant's termination. The complaint was amended in August 2012 to include the termination issue and a new investigation was conducted to address that issue but by that time PM was no longer working2 for the Agency. We therefore do not find that the evidence in question shows that PM's statements about why Complainant was not granted FMLA status in 2011 were untrue.
With regard to whether or not Complainant was in FMLA status in 2012, we note that the document identified by Complainant is unclear. SROI Exhibit 7, p. 5. Specifically it is not clear from the document, which appears to be a computer screenshot, whether FMLA leave was actually granted, or whether Complainant applied for FMLA leave by filling out an online request and then took a screenshot of the completed, but not yet approved, request. However, even assuming, arguendo, that FMLA leave was granted, that does not establish, by a preponderance of the evidence, that Complainant's termination was due to discrimination based on sex or reprisal. The issue in this case is not whether or not the removal was unfair, but whether or not it was carried out based on sex discrimination and/or reprisal. We therefore deny Complainant's request that the case be remanded for a supplemental investigation and we further find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. We note that Complainant does not deny that she had attendance problems and she has not shown that the attendance problems of her comparators, none of whom were similarly situated with her with regards to their job positions or supervisors, were as bad as hers.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing that discrimination or reprisal occurred, and we AFFIRM the FAD.
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
June 27, 2013
__________________
Date
1 Complainant amended her complaint to include the termination claim on August 22, 2012.
2 According to Complainant, PM was removed from the Agency on May 16, 2012. See SROI, Affidavit A, p. 3.
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0120132003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132003