Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionJul 2, 2014
0120141389 (E.E.O.C. Jul. 2, 2014)

0120141389

07-02-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120141389

Agency No. 4G-335-0197-13

DECISION

Complainant filed an appeal from the Agency's final decision, dated January 27, 2014, 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).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Services, and Distribution Associate at the Agency's Bonita Springs Post Office facility in Bonita Springs, Florida.

On September 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On June 13, 2013, Complainant received an Investigative Interview; and

2. On June 28, 2013, she was issued a Notice of Removal effective August 10, 2013.

The record discloses the following pertinent information.

Complainant is an African-American woman. Complainant has filed four prior EEO complaints. Three of the complaints closed on or before August 24, 2012. The fourth case remains open. In addition, there is an open appeal pending before this office, Lagonda A. Howard v. United States Postal Service - Southwest Region, EEOC Appeal 0120123413.

Complainant reports to the Supervisor, Customer Services, (S1) (Caucasian). Her supervisor averred that she is aware of Complainant's race and color, but S1 was not aware of Complainant's prior EEO activity. Complainant's second line supervisor is the Postmaster (Caucasian) who was named in her prior EEO complaints and was aware of Complainant's race, color and her prior EEO activity.

On June 28, 2013, the supervisor issued a Notice of Removal, effective August 10, 2013. The reason was failure to be in regular attendance.

As further background, Complainant had been terminated in December of 2011 for attendance issues. As a result of grievance settlement, Complainant was returned to work in January of 2013. The claims against her were reduced to a long term suspension. The record shows that Complainant received a Letter of Warning because of unscheduled absences. The letter was to be removed according to the grievance settlement, if she had no attendance infractions within six months; a seven-day suspension was converted to a paper suspension removable in a year, and a Removal was converted to a Long Term Suspension.

On December 26, 2012, Complainant was adjudicated guilty of driving with a suspended license and placed on probation. On April 9, 2013, Complainant was arrested and incarcerated for violating her probation. She took 16 hours of Emergency Annual Leave on April 10 and April 11, 2013. She was away from work between April 12 and June 13, 2013, because Complainant was detained in jail until July 1, 2013 and unable to report to work for nine weeks.

S2 instructed S1 to conduct an Investigative Interview regarding Complainant's absence. At the direction of S2, Complainant's supervisor (S1) visited Complainant in jail to issue her the Notice of Removal. The Postmaster (S2) testified that Complainant's attendance was considered unsatisfactory because Complainant had been Absent Without Leave (AWOL) for over nine weeks while Complainant was in jail. S2 testified that the absences violated the Agency's policy that required that employees maintain their assigned schedules.

The stated reason for the removal was the nine weeks of AWOL. Management officials stated that the Agency has a policy that requires employees to be regular in attendance. S2 also testified that the Agency does not have a provision to cover absences for employees who are incarcerated. The record does not show that anyone else was permitted to remain on the rolls after nine weeks of absence. Complainant did not dispute that she had a nine-week unexcused absence, but maintains that her absence was involuntary.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

Agency Decision

The Agency found that "Complainant offered no evidence that her race or color or her prior EEO activity played any role in the decision to issue the Notice of Removal." The Agency reasoned that the deciding official (S1) was unaware of Complainant's prior EEO activities. The Agency also found that there were no facts backing up Complainant's "aspersions that [the concurring official] tended to discipline only Blacks for their attendance violations." The Agency next found that "[Complainant] failed to present any plausible evidence demonstrating that management's reasons for its actions were factually baseless or not is actual motivation." The Agency found that the evidence did not support a finding that Complainant was subjected to discrimination.

This appeal followed.

ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").

On appeal, Complainant asks for an attorney to be appointed for her. The Commission is unable to provide Complainant with an attorney for her appeal.

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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We find that the Agency articulated a legitimate, nondiscriminatory reason for conducting the Investigative Interview and issuing the Notice of Removal. In this case, the deciding official (supervisor) averred that Complainant was placed on AWOL because she had not reported to work for nine weeks. Complainant does not dispute that she was out of work, but maintains that her unexcused absence was beyond her control. The Agency states that it does not have a leave policy which would grant leave for jail time.

We find that Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination. Complainant maintains that the reviewing official has a reputation for discriminating against African-American females and that racial animus and retaliation were the real reasons for the Agency's actions. However, beyond this bare assertion, Complainant has provided no evidence to support her claim of discrimination or retaliation with regard to the claims that are before us.

We find that the preponderance of the evidence supports the Agency's decision.

CONCLUSION

Accordingly, we AFFIRM the Agency's Final Decision.

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 tends 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

July 2, 2014

__________________

Date

2

0120141389

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141389