0120071958
08-06-2007
Carol Plunkett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol Plunkett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071958
Agency No. 1J609002006
Hearing No. 440-2006-00200x
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the agency's decision
is affirmed in part, reversed in part and remanded.
During the relevant time, complainant worked as a Full Time Laborer
Custodial, PS-03 at the Chicago Bulk Mail Center in Forest park, Illinois.
Complainant sought EEO counseling on May 4, 2006 alleging that she was
a victim of discrimination based on her sex when:
1. On March 1, 2006 the agency denied her request for eight (8) hours
of annual leave and;
2. She was issued a Letter of Warning (LOW) on May 3, 3006 for failure
to maintain a regular work schedule.
Informal efforts to resolve complainant's concerns were unsuccessful
and on June 8, 2006, she filed a formal complaint.
On June 20, 2006, the agency partially accepted claim 2 of complainant's
complaint. The agency determined that claim 1 that the agency denied
her 8 hours of annual leave was untimely filed. Specifically, the agency
found that complainant's May 4, 2006 EEO contact regarding an event which
occurred March 1, 2006 was beyond the relevant time period for timely
seeking counseling. The agency, however accepted for investigation,
claim 2 regarding the LOW issued on May 3, 2006.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
With respect to the agency's dismissal of claim 1, a review of the
record reveals that in a document dated June 22, 2006, complainant
contends that her request for leave was denied on April 26, 2006 and
not March 1 as the agency indicates in its dismissal. In that regard,
complainant maintains that her May 4, 2006 EEO counselor contact was
timely. Upon review of the record, the Commission finds that there
is no mention by complainant of March 1, 2006 as the date her leave
request was denied. In fact nowhere in the record does complainant
refer to the date of March 1, 2006. Where as here, there is an issue
of timeliness, "[a]n agency always 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, 1944)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
"the agency has the burden of providing evidence and/or proof to support
its final decisions.
Therefore, the Commission finds that the agency has failed to provide
sufficient evidence to support its dismissal of claim 1 as untimely.
Consequently, the Commission finds that the agency's decision concerning
claim 1 was improper and is reversed.
At the conclusion of the investigation of claim 2, 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. The record indicates, however, that
because complainant failed to follow the AJ's orders regarding submission
of documents, the AJ dismissed complainant's hearing request and remanded
the matter to the agency for issuance of a final decision.
In its February 3, 2007 final decision, the agency incorporated by
reference, the dismissal of claim 1. After considering the merits
of claim 2, the agency concluded that complainant did not prove that
the LOW was discriminatory. According to the agency, complainant
failed to present a prima facie case of sex discrimination as alleged
because complainant failed to demonstrate that she was treated less
favorably than similarly situated individuals. The record discloses
that the comparators complainant named received letters of warning for
attendance irregularities as well. The agency determined further that
even assuming arguendo, the complainant established a prima facie case
of sex discrimination, the agency proffered legitimate-nondiscriminatory
reasons for its actions, and complainant failed to demonstrate that the
agency's reasons were a pretext for discrimination.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); 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).
The Commission determines that the agency articulated legitimate
non-discriminatory reasons for the LOW issued to complainant on May
3, 2006. Specifically, the agency indicated that prior to May 3,
2006; complainant had been warned regarding her frequent unexcused
absences and tardiness. In its final decision, the agency states
that complainant was given a pre-disciplinary discussion on March 4,
2006 regarding her attendance irregularities and advised to improve.
However, the record, including the agency's own LOW, indicates that a
pre-disciplinary meeting was held with complainant on April 29, 2006.
According to the agency, when complainant's attendance did not improve,
a LOW was issued on May 3, 2006 in accordance with agency policy and the
collective bargaining agreement. On appeal, complainant contends that
she was never given a pre-disciplinary interview. However, upon review
of the record in its entirety the Commission finds that complainant's
assertion is not persuasive evidence that the agency's conduct regarding
issuing the LOW was discriminatory.
The Commission finds therefore, that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. Complainant fails to
provide evidence that the May 3, 2006 LOW was based on any discriminatory
animus toward her sex.
Therefore, after careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and
evidence not specifically addressed in this decision, we affirm the
agency's dismissal of claim 2 regarding the LOW and reverse the agency's
dismissal of claim 1 as untimely. The claim is remanded to the agency
for processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
August 6, 2007
__________________
Date
6
0120071958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120071958