copy_of_01a55001_r
11-15-2005
Charlotte Imhof, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charlotte Imhof v. United States Postal Service
01A55001
11/15/2005
Charlotte Imhof,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55001
Agency No. 4H-350-0037-04<1>
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Human Resources
Specialist at the agency's Birmingham, AL facility. Complainant sought
EEO counseling and subsequently filed two formal complaints on March 12,
2004, and April 21, 2004, alleging that she was discriminated against
on the bases of race (Caucasian), disability (major depression and
anxiety), <2> and in reprisal for prior EEO activity.
On April 2, 2004, the agency issued a partial acceptance/dismissal
letter regarding complainant's first complaint, filed on March 12, 2004
(4-H-350-0037-04). Therein, the agency accepted for investigation the
following claims:
[Complainant] received a Notice to Report informing [her] that [she]
failed to obtain medical documentation that [she] was unable to work or
when [she] would return to work; [complainant was] notified that [her]
absence was charged to leave without pay (LWOP) instead of annual leave
as requested.
However, the agency dismissed complainant's claims that she was
discriminated against on the following dates: March 28, 2003, May 9, 2003,
June 11, 2003, and July 21, 2003. The agency stated that complainant
failed to specify the nature of the alleged discriminatory incidents for
these dates. In addition, the agency stated that complainant failed to
initiate EEO Counselor contact within the applicable time period.
By letter dated May 20, 2004, the agency accepted complainant's second
complaint, Agency Case No. 4-H-350-0066-04, for investigation and
determined that it was comprised of the following claims:
[Complainant's] request for annual leave was not granted for February 1-6,
2004, and February 13 and February 17, 2004.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge. Complainant subsequently withdrew her request
for a hearing and requested a final decision from the agency.
In its FAD, dated June 14, 2005, the agency concluded that complainant
was not subjected to unlawful discrimination. The agency found that
complainant failed to establish a prima facie case of disability
discrimination. In addition, the agency found that complainant failed
to establish a prima facie case of retaliation. Furthermore, the agency
asserted that it articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the agency asserted that complainant was
issued a Notice to Report because she did not provide additional medical
information regarding her need to remain on extended leave after November
21, 2003. Regarding complainant's claim that she did not receive pay and
was denied annual leave for various dates in February 2004, the agency
asserted that an oversight occurred between the Enterprise Resource
Management System (ERMS) and the Time and Attendance Collection System
(TACS). Moreover, the agency found that complainant failed to establish
pretext.
Dismissed Claims
We find that the agency properly dismissed complainant's claims that she
was discriminated against on March 28, 2003, May 9, 2003, June 11, 2003,
and July 21, 2003 on the grounds of untimely EEO Counselor contact.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reflects that complainant initiated EEO Counselor contact on
December 18, 2003, outside of the applicable time limit for the dates
in question. In addition, complainant has failed to provide adequate
justification for extending the applicable time limit.
Accordingly, the agency's decision to dismiss the above referenced claims
is AFFIRMED.
Accepted Claims
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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 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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Regarding complainant's claim that she was issued a Notice
to Report and placed on LWOP, the record contains an affidavit from
complainant's supervisor (S1). Therein, S1 asserted that she issued
complainant a Notice to Report, at the direction of the Acting Manager,
Human Resources, because complainant's medical documentation expired
on November 21, 2003.<3> The record contains a copy of complainant's
Notice to Report from S1 dated December 8, 2003. Therein, S1 states that
complainant has had an unsubstantiated absence since November 24, 2003.
In addition, S1, in the Notice to Report, asserts that complainant has
failed to obtain documentation from her doctor that she is unable to work
or when she is expected to return to work. The record also contains an
affidavit from the Manager, Personnel Services (M1). Therein, M1 refers
to various sections of the Employee and Labor Relations Manual, including
Section 666.82 which provides, in relevant part, that �[a]n employee who
is absent without permission or fails to provide satisfactory evidence
that an emergency existed will be placed in a non-pay status for the
period of such absence.�
Regarding complainant's claim that she was denied annual leave for various
dates in February 2004, M1 asserted that February 1, 2004 was a Sunday,
and not a reporting day for complainant; therefore, leave would not have
been required. M1 further asserted that complainant was approved for
annual leave in lieu of sick leave for the remaining dates in question.
However, M1 asserted that in researching the issue, she discovered that
the �adjustments� for complainant's leave were not completed in one of the
agency's computer systems. In addition, the record contains a copy of an
e-mail from the ERMS Site Coordinator (C1) to M1 dated January 18, 2005.
Therein, C1 asserts that �[E]RMS is the system that we use to record
all absences. The leave that is entered into TACS...was entered by
[two named agency employees]. At the time of these entries, [E]RMS
and TACS were not merged...What appears to have happened is that [the
two named agency employees] did not check ERMS to determine what type
of leave [complainant] requested.� Upon review of the record, we find
that complainant failed to establish by a preponderance of the evidence
that the agency's proffered reasons were pretext for discrimination.
Accordingly, we AFFIRM the agency's final decision finding no
discrimination.
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
11/15/2005
Date
1The agency consolidated Agency Case No. 4-H-350-0066-04 with Agency
Case No. 4-H-350-0037-04. The consolidated complaint is identified as
Case No. 4-H-350-0037-04.
2For purposes of analysis only, we assume, without finding, that
complainant is a person with a disability.
3We note that the record contains a doctor's note indicating that
complainant could not return to work before November 21, 2003.