0120080249
05-15-2009
Cheryl L. Gore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl L. Gore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080249
Agency No. 4J-530-0046-06
Hearing No. 443-06-00096X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 11, 2007, 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., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Complainant alleged that the agency discriminated
against her on the bases of disability (neck strain, myofascial pain,
stenosis) and reprisal for prior protected EEO activity when: (1) on
March 2, 2006, she was issued an Emergency Placement in a Non-Duty/Non-Pay
Status for allegations of violation of the Joint Statement on Violence
and Behavior in the Workplace on March 1, 2006; and (2) she was issued
a Notice of Removal dated March 9, 2006, for unacceptable conduct -
violation of zero tolerance policy.1
The record reveals that complainant is a full-time Carrier Technician at
the Wauwatosa facility. While discussing a work related assignment with
her supervisor, complainant became upset and screamed that she would not
comply. Complainant starting yelling louder and her supervisor maintained
that complainant got very close to her face and began spitting while she
was screaming. Complainant began using obscenities, said she was being
treated differently than other employees and told her supervisor that
she could not tell her what to do. Complainant's supervisor instructed
her to wait at her desk so that she could contact another supervisor.
Complainant then shouted profanities at the supervisor, went to the
time clock, clocked out and left the facility. Complainant's supervisor
maintained that complainant had a problem with her temper and that she
(the supervisor) did not feel safe. The following day, complainant was
served with the Emergency Placement off-duty order and was subsequently
served with a Notice of Removal.
Following an investigation by the agency, complainant initially requested
a hearing before an EEOC Administrative Judge (AJ) but withdrew her
request in favor of a final agency decision (FAD). The FAD found
that complainant failed to establish a prima facie case as to all
bases. Further, the agency found that even if, assuming arguendo,
complainant established a prima facie case of discrimination as to all
bases, the agency had articulated legitimate nondiscriminatory reasons
for its actions. Specifically, the agency explained that complainant
was placed off-duty because it was determined that she had displayed
inappropriate behavior toward her supervisor. The agency indicated that
pursuant to section 61.4 of the Employee and Labor Relations Manual,
an employee may be placed in an off-duty status non-pay status when she
fails to obey a direct order, provides reason to be deemed potentially
injurious to others, or disrupts day-to-day operations in any other way.
Similarly, with respect to the Notice of Removal, the agency explained
that complainant was issued the Notice of Removal based on her behavior
and actions toward her supervisor and because she had engaged in
similar inappropriate conduct in the recent past. In an attempt to show
pretext, complainant maintained that other employees were not asked to
work outside of their restrictions2, placed off the clock or issued a
Notice of Removal. The agency explained that the comparators were not
similarly situated to complainant, in that there was no evidence that
they had engaged in conduct similar to hers, e.g. that they screamed
at the supervisor, directed profanity at the supervisor, or ignored the
supervisor's instruction to stay at the facility as complainant had.
Complainant did not provide a brief on appeal.
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 decision.
The Commission agrees that the agency has articulated legitimate
nondiscriminatory reason for its actions, namely, that complainant was
placed off the clock on March 2, 2006, due to her threatening behavior
towards her supervisor and because she failed to follow a direct order
by her supervisor on March 1st. . Further, the evidence shows that she
was issued the Notice of Removal3 because of the incident on March 1,
2006, and because a similar incident involving complainant had occurred
in the past. There was no evidence presented which demonstrated
that discriminatory animus motivated these matters. The Commission
also agrees that complainant failed to demonstrate that the agency's
nondiscriminatory reason was pretext for discrimination. Accordingly,
we find the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
05/15/09
__________________
Date
1 Complainant originally raised nine issues of discrimination. She
alleged, as summarized by the agency, that she was discriminated against
on the bases of her physical disability (neck strain, myofascial pain,
stenosis) and retaliation (prior EEO activity), when 1] on 03/01/06, you
were questioned about your restrictions and told you couldn't carry mail;
2] on 02/05/06, you alleged that you were told that you were fired for the
exchange of words you had with a supervisor on 02/04/06; 3] on 11/07/05,
you alleged that when you called in ill, you were told you needed medical
documentation; 4] on 11/17/05, you asked to be reimbursed for mileage
for getting medical documentation; 5] on 01/19/06, you alleged that you
were told to get a medical justification for taking leave without pay;
6] on 01/12/06 or 01/13/06, you alleged that you were asked to lie about
attempting to deliver a package to a customer; 7] on 1/20/06, management
asked you to get a medical update; 8] on 03/02/06. you were issued
an Emergency Placement in a Non-Duty/Non-Pay Status for allegations
of violation of the Joint Statement on Violence and Behavior in the
Workplace on 03/01/06; and 9] you were Issued a Notice of Removal dated
03/09/06 for unacceptable conduct-violation of zero tolerance policy.
Seven of the issues were dismissed. Allegations 1, 2, 5, 6, and 7 were
dismissed for failure to state a claim and allegations 3, and 4 were
found to be untimely. Complainant does not specifically challenge these
dismissals on appeal.
2 Contrary to complainant's contentions it was verified by the Health
Unit that the assignment that was given to complainant was within her
restrictions.
3 The Notice of Removal was not enforced and was settled in the Grievance
process.
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0120080249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013