0120111722
03-25-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120111722
Agency No. 4B-060-0083-10
DECISION
On February 4, 2011, Complainant filed an appeal1 from the Agency's January 11, 2011 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 accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly dismissed Complainant's reprisal claim; and (2) whether the record is adequately developed to allow the Commission to determine if the Agency discriminated against Complainant on the bases of race (African-American), sex (female), or reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Greenwich Post Office in Connecticut. Complainant's First Level Supervisor was the Supervisor, Customer Services (S1 - Caucasian, male). Complainant's Second Level Supervisor was the Manager, Customer Services (S2 - Caucasian, male). The Acting Postmaster was the Officer in Charge (OIC - Caucasian, female).
According to Complainant, management treated her differently because of her race and sex with regard to time and attendance. Specifically, Complainant asserted that management disciplined her for irregular attendance but did not similarly discipline her Caucasian male co-workers2 for their irregular attendance. The record reflects that management disciplined Complainant for skipping lunch,3 arriving late, and taking unscheduled leave (sick leave, annual leave, leave without pay). Complainant alleged that management did not discipline her Caucasian male co-workers when they engaged in comparable behavior. In addition, Complainant asserted that management disapproved her requests for a temporary schedule change on several occasions while approving similar requests from her Caucasian male co-workers.
On April 15, 2010, Complainant contacted an EEO Counselor. On July 27, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her when:
1. On February 12, 2010, management issued her a letter of warning for failure to be regular in attendance from January 2 to February 5;
2. In February 2010, management told her to adhere to her schedule and take lunch breaks even though her Caucasian male co-workers were not treated in the same manner;
3. On February 25, 2010, management issued her a notice of seven-day suspension for failure to be regular in attendance;
4. On an unspecified date, management suggested that she bid a job with different hours;
5. On unspecified dates, the discipline issued by management contained numerous errors;
6. On an unspecified date, her union steward did not provide her with the status of her grievances;
7. On April 7, 2010, management disapproved her request for a temporary schedule change for the period of April 9 to April 12;
8. On April 12, 2010, management issued her a notice of 14-day suspension for failure to be regular in attendance from February 27 to April 12;
9. On April 16, 2010, management disapproved her request for a temporary change of schedule for April 19;
10. On May 26, 2010, management issued her a notice of seven-day suspension for failure to be regular in attendance from April 12 to May 17;
11. On June 4, 2010, management discussed her EEO complaint with persons not involved in the complaint; and
12. On July 1, 2010, management issued her a notice of seven-day suspension for failure to be regular in attendance from April 12 to June 30.
With regard to the type of discrimination she was alleging, Complainant checked the boxes on her formal complaint form for race (African-American) and sex (female), but not for reprisal.
On August 10, 2010, the Agency partially accepted and partially dismissed Complainant's complaint. The Agency accepted claims 7-10 and 12 for investigation, but dismissed the remaining claims. The Agency dismissed claims 1-3 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency dismissed claims 2, 4-6, and 11 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision 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.
Initially, the decision reaffirmed the previous dismissal of claims 1 and 3 for untimely EEO Counselor contact and claim 6 for failure to state a claim.4 The decision, however, found that the previous dismissal of claims 2, 4, 5, and 11 was improper because they were non-discrete acts. The decision noted that it would consider all the previously dismissed issues, with the exception of claim 6, as part of Complainant's overall harassment claim.
Next, the decision analyzed claims 7-10 and 12 under a disparate treatment framework and found no race or sex discrimination. Specifically, the decision found that Complainant failed to establish a prima facie case of discrimination on the bases of race or sex. In addition, the decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, the Agency disapproved Complainant's requests for a temporary schedule change based on the needs of the service and disciplined Complainant based on her poor attendance record. Moreover, the decision found that Complainant failed to prove that the Agency's reasons were pretextual because the record did not support her assertions that the Agency treated her Caucasian male co-workers more favorably.
Finally, the decision analyzed claims 1-5 and 7-12 under a harassment framework. The decision found that Complainant failed to establish a claim of harassment based on race or sex.
ANALYSIS AND FINDINGS
Standard of Review
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 EEO MD-110, Ch. 9, � VI.A (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").
Reprisal - Claim 11
In her complaint, Complainant alleged that, on June 4, 2010, management discussed her EEO complaint with persons not involved in the complaint. The Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Upon review, we find that the Agency improperly dismissed the claim. Although Complainant did not check the box for reprisal on her formal complaint form, it is clear from the claim itself that she alleged reprisal as a basis. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, 8-II.D.3 (May 20, 1998); see also Carroll, supra. Here, we find that management's discussion of Complainant's EEO complaint with persons not involved in the complaint could reasonably deter Complainant or others from engaging in protected activity.
Adequacy of the Record
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Upon review, we find the record to be insufficiently developed for us to determine if management discriminated against Complainant on the bases of race, sex, or reprisal. Specifically, we find that the record contains inadequate documentary and testimonial evidence regarding: (a) whether Complainant's Caucasian male co-workers had irregular attendance; and (b) whether management discussed Complainant's complaint with persons not involved in the complaint.
First, the record is unclear as to whether Complainant's Caucasian male co-workers had irregular attendance. Complainant averred that her co-workers often skipped lunch or shortened their lunch, arrived late, and took unscheduled leave. In contrast, management averred that those co-workers either did not have any attendance issues or did not have anywhere near the amount of attendance issues as Complainant. The record, however, contains no clock rings for Complainant or her co-workers. We find that the clock rings are relevant evidence because they would show whether, and how often, Complainant and her co-workers skipped lunch or shorted their lunch, arrived late, or took unscheduled leave. Despite Complainant mentioning the importance of the clock rings numerous times during the EEO process (to the EEO Counselor, in her formal complaint, in her affidavit), the Agency failed to include the clock rings as part of the record. ROI, at 28, 78, 164. We note that the record contains a PS Form 3972, Absence Analysis for Complainant and her co-workers. We find, however, that we cannot determine the regularity of attendance from these forms alone because: (a) the forms only state the total hours of absence each day and the type of absence; and (b) the forms are completed and maintained by management. ROI, at 247-260, 274. Because Complainant alleged that management scrutinized her irregular attendance but ignored the irregular attendance of her co-workers, we find that the clock rings are a more reliable indicator of each employee's attendance.
Second, the record is unclear as to whether management discussed Complainant's complaint with persons not involved in the complaint. The EEO Counselor's Report contains the following statement: "[Complainant] said that another employee told her that on June 4, 2010, they heard management discussing her EEO complaint in the OICs office and that ... the Postmaster of Greenwich who was on detail as the A/Manager, Post Office Operations and several other people who did not have a need to know about it were present." ROI, at 63. As the Agency improperly dismissed the claim and did not conduct an investigation on the claim, the record contains no sworn testimony regarding the claim. We are unable to determine, based on the present record, what did or did not occur on June 4, 2010.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's claims, as described above. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. Clock rings for Complainant and her Caucasian male co-workers from February 27, 2010 to June 30, 2010.
b. The bid assignments for Complainant and her Caucasian male co-workers during the relevant period. The bid assignments should include the tour of duty and the scheduled length of the lunch.
c. A summary comparison, based on the clock rings, of how often Complainant and her Caucasian male co-workers skipped lunch or shortened their lunch, arrived late, and took unscheduled leave. This summary comparison should be prepared by Human Resources.
d. Sworn affidavits from employees or management officials (other than Complainant, S1, S2, and OIC) who may have observed the attendance of Complainant or her Caucasian male co-workers during the relevant period.
e. Sworn affidavits from Complainant, S1, S2, S3, and other employees or management officials who may have observed any discussion of Complainant's EEO complaint on June 4, 2010.
f. A rebuttal statement from Complainant after she has had an opportunity to review the requested documents and sworn affidavits.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within one hundred and twenty (120) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
__3/25/14________________
Date
1 Complainant did not file a brief or statement in support of her appeal. In its April 8, 2011 statement in opposition to the appeal, the Agency requested that the Commission affirm its final decision.
2 Complainant provided the names of the four Caucasian male co-workers. ROI, at 159-60.
3 In February 2010, OIC posted a notice stating that employees were required to take their full lunch every day as indicated in their bid jobs and that failure to do so would result in discipline. Complainant alleged that her Caucasian male co-workers would regularly skip their lunch or shorten their lunch.
4 On appeal, Complainant did not specifically challenge the Agency's dismissal of claims 1, 3, and 6. The Commission has the discretion to address on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A (Nov. 9, 1999). Accordingly, we will not address the dismissal of claims 1, 3, and 6 in this decision and therefore affirm their dismissals.
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0120111722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111722