0120131152
06-24-2013
Cassandra Baker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Cassandra Baker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131152
Hearing No. 530-2011-00239X
Agency No. 1C-191-0018-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 10, 2013 final action concerning an 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 Processing Clerk at the Agency's Philadelphia, Pennsylvania, Processing and Distribution Center.
On February 25, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
on November 3, 2010, she was issued a Notice of Removal, effective December 3, 2010, on the charges of unauthorized absence from her work assignment/facility and accepting compensation for work not performed.
Following a hearing held on November 30, 2012, the AJ issued a bench decision finding no discrimination. The AJ concluded that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the removal decision which Complainant failed to show were a pretext.
The AJ indicated that Complainant testified that in September 2010 the Lead Senior Manager ("Postmaster") (male) discussed "personal and past issues" with her. At the time, she asked him to help her son who was working for the Agency as temporary employee. She asserts that later than day, the Postmaster and the Manager of Distribution Operations ("MDO") (female) conducted a pre-disciplinary interview with Complainant, in the presence of her union representative, concerning observed discrepancies in her clock rings and badge swipes that seemed to indicate that she was leaving the building while still on the clock. Complainant stated that her badge was not working properly. She also indicated that it was a common practice for clerks to work through lunch and breaks in order to process the mail in a timely manner and, after processing the mail, take those breaks towards the end of their shifts, including sometimes sitting in their cars. The AJ noted that another clerk corroborated this practice.
The AJ noted that during her testimony, the MDO stated that she usually stayed at the end of tours "to finalize the tax errors, which means anyone that's left in error, I usually correct them. The supervisors are responsible for correcting errors daily to ensure that the employee's times are accurate. Anybody that's left handing without nobody going in and finalizing their time, I would make the corrections or the adjustments."
MDO testified that all employees, including Complainant, have a designated clock to hit in and hit out. MDO further stated that on one particular morning sometime in July 2010, MDO noted Complainant "was missing an end time. And I recall on several other occasions she had missing end times. And it just sparked my curiosity - why, why does she continue to miss end times. .... week after week, she's missing an end time, somehow she's missing a begin time." MDO stated at that time, she decided review Complainant's other weeks and noted "same thing, missing an end time. Somebody had to go in and physically give her an end time. You know, with their ID number, they had to go in and give her an end time."
MDO stated that she then asked the Postmaster to check what time Complainant left the building on that particular date "because she's missing an end time. On this particular day, [Postmaster] . . . checked and looked it up and said, okay, she left such and such time and, I gave her an end time of that particular day. And that would be the norm." MDO stated, however, Complainant's missing end times "kept recurring often, more so than some of the other employees, more often than others." MDO stated that during the relevant time Complainant's supervisor did not give Complainant an end time and "he left her hanging, because he could not verify what time she actually left her building."
Further, MDO stated that her research showed there were several occasions that Complainant "was hitting on or hitting out to go home on the unauthorized clock, which is 114 or 113. I don't remember the exact number of it, but I know it was a number over in the maintenance department. So I'm like wow, why is she getting out in maintenance." Specifically, MDO stated that maintenance clock is "not a clock where the employees clock out at...that's unusual. And that's what sparked the investigation." MDO stated that she started pulling records and noted that Complainant had many different rings.
MDO stated that she recalled having a meeting with Complainant "asking her what clock she normally hits out on. And I asked her that based on me looking at the clock ring reports and seeing that she was hitting out on an unauthorized clock. So, I wanted to hear from her . . . whether or not she was going to admit to hitting out at another clock or whether somebody else was, in fact, hitting her timecard out. So, when I questioned her about that, she said, oh, I only hit out on this clock or that clock. At no time did she ever say she hit out in the maintenance clock. And then that really sparked my curiosity up or my suspicion because she denied hitting out on the maintenance clock."
MDO testified that after sharing her concerns with the Postmaster, she contacted the Office of Inspector General ("OIG") because she had concerns Complainant was "committing timecard fraud." MDO stated at that time, OIG informed her that it was going to refer MDO's concerns to higher level management. MDO stated, however, the OIG "kicked it back to [Postmaster] to do the investigation. And that's how it started." MDO stated that after a 3-month investigation, the Postmaster prepared a report indicating that Complainant was abusing the Time and Attendance Collection System (TACS) system and received unjustified compensation for times when she left the building without authorization and received compensation for time that she did not work.
MDO stated that she and the Postmaster conducted a pre-disciplinary interview with Complainant with her union steward present. MDO stated that based on the information she received from the Postmaster's report and the pre-disciplinary interview, she decided to issue Complainant a Notice of Removal.
The record reflects that in the November 3, 2010 Notice of Removal, MDO placed Complainant on notice that she would be removed from Agency employment based on unauthorized absence from work assignment/facility and accepting compensation for work not performed. Specifically, MDO stated that a review of Complainant's TACS from May 31, 2010 to August 11, 2010 showed she had time card swipes "on 15 occasions when you were not present in the facility and that you clocked in and subsequently exited the facility on 35 occasions while on the clock, for which you received compensation. Analysis of these records further disclosed that, in total, you were paid for 27.28 hours when you were not present in the facility, resulting in your receipt of $734.66 in unjustified compensation."
The AJ noted during his testimony, the Postmaster stated that during the relevant period, MDO came to him with concerns about Complainant's time record because "she was missing some end times and some questionable - - some questionable things that [were] happening with what clock or badge readers that she was hitting out at the end of the day." Specifically, MDO noted that Complainant had end times "at badge readers that she didn't even know at the time where those badge readers were, but they were not the same badge readers that all the rest of the employees in her operations were hitting out on." The Postmaster stated that after MDO interviewed Complainant about which badge reader she was hitting, she investigated those badge readers but "they were not the same badge readers that [Complainant's] end times were being hit out on."
Further, the Postmaster testified that he and MDO gave OIG a statement asking it to investigate their concerns about the possibility of Complainant being compensated for work not being performed. The Postmaster stated that OIG sent them a letter stating "[OIG] did not have the resources at that time. And they turned it over to the plant manager, which ultimately turned back to me."
The Postmaster stated at that time he was given access to records for a 3-month period. The Postmaster stated that once he pulled the records, he started "comparing the activity from the day-to-day on what was occurring, meaning from beginning to end on a given day what time did [Complainant] enter the facility, what time did she hit on with her timecard, which pays - - which starts the clock to pay you. And then, if she left out of the facility when she should not have been being paid and did she hit off the clock to do so." At the conclusion of the investigation, the Postmaster found Complainant "outside the building frequently and being paid while she was still on the clock."
The Postmaster stated that he then prepared a report and interviewed Complainant's supervisor "in the process to his awareness of [Complainant] being outside the facility and being compensated." The Postmaster stated that he wanted to make sure that the supervisor was not allowing something that was not authorized by the Agency. The Postmaster determined that the supervisor was not involved because "he was not aware of [Complainant] doing what the reports indicated that she was doing."
The Postmaster testified that he and MDO conducted a pre-disciplinary interview with Complainant with her union representative present. During the interview, MDO informed Complainant there was discrepancy on how did she enter the building on that day, "because when we pulled her records on that day, she had no access into the facility. And I'm like how could that be?" The Postmaster stated that Complainant claimed that her badge was broken and "somebody allowed me in the building. When questioning who allowed you in the beginning, she claimed I don't know. I don't know who let me in, somebody."
The Postmaster stated that during the interview, MDO gave a copy of his report to Complainant and her union representative. The Postmaster stated that MDO gave Complainant an opportunity "to explain what was right and what was wrong with that report." The Postmaster stated that he did not discriminate against Complainant based on her sex and prior protected activity.
During his testimony, Complainant's immediate supervisor stated that MDO and the Postmaster met with him because, "I think there was something wrong with [Complainant's] time or something about being in the building, so I guess they wanted to make sure I wasn't a part of ... facilitating her being outside the building." The supervisor testified that following the interview, he was given a verbal reprimand "for not controlling my people." Specifically, the supervisor stated "I'm a supervisor and I am supposed to know where my people are at."
On January 10, 2013, the Agency issued its final order adopting the AJ's finding of no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 24, 2013
__________________
Date
2
0120131152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131152