0720070028
09-13-2007
Connie L. Bridgewater, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (SE), Agency.
Connie L. Bridgewater,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service (SE),
Agency.
Appeal No. 0720070028
Agency No. 4H330005106
Hearing No. 510200600188x
DECISION
In its January 8, 2007, final order, the agency rejected the decision of
the Administrative Judge (AJ), dated November 13, 2006, finding that the
agency discriminated against complainant in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. On January 11, 2007, the agency filed a timely appeal with the
Commission.1 The Commission accepts the agency's appeal pursuant to
29 C.F.R. � 1614.405(a). For the reasons that follow, the Commission
reverses the agency's final order and affirms the decision of the AJ.
On February 24, 2006, complainant filed a formal EEO complaint claiming
discrimination based on sex when she was issued a Notice of Removal
on October 5, 2005, for unsatisfactory attendance. Following an
investigation, complainant requested a hearing before an AJ. The AJ
conducted a hearing on October 23, 2006, and issued a decision on November
13, 2006, finding that the agency discriminated against complainant
as alleged. In its final order. the agency rejected the AJ's finding
and filed this appeal.2
At the time of events giving rise to this complaint, complainant worked as
a Letter Carrier at the agency's Normandy Branch in Miami, FL. She began
her employment with the agency in 1987, and, since about 1992-1993,
she worked as a letter carrier at Normandy. Complainant's scheduled
start time, as stated on her bid assignment, was 8:00 p.m. To track
attendance, the agency allowed a five-minute grace period for employees
to "clock in," and arrival at any time after this period was considered
unscheduled leave. On October 5, 2005, complainant received a Notice of
Removal for unsatisfactory attendance; specifically, the agency stated
that, on seven occasions since August 9, 2005, complainant was late
and charged with unscheduled absence for periods of .09 or .10 units,
or 5.4 to 6 minutes, each of the seven days, for a total of .67 units
(about 40 minutes).3 The Notice also cited prior discipline issued to
complainant in 2005, for the tardiness, i.e., on March 3, she was issued
a seven-day suspension; on May 19, she was issued a 14-day suspension;
and on July 28, she was issued a 14-day suspension.4
Complainant testified that she is a single mother, and, on the way to
work, she drops her child off at school.5 She acknowledged that she is
often tardy, but by only a few minutes each time, and she noted that
she was rarely absent for a full day, except when she was ill or took
annual leave. She pointed to two male letter carriers (ES and EJ)
whom, she contended, were treated more favorably than she and whose
attendance records showed more serious violations of agency regulations.
Complainant's first-level supervisors, SE, the morning supervisor,
and SM, the evening supervisor, also supervised ES and EJ, the male
comparative employees. They testified, as did the Normandy Manager (MT),
that complainant performed her duties well and was a valuable employee;
both indicated that MT initiated the disciplinary actions.
The AJ found that complainant established a prima facie case of sex
discrimination, in that, she showed that she was similarly situated to
the two male employees and that ES had more severe and more numerous
instances of absences and tardiness during the same period within
which complainant was disciplined, and ES was not. In particular,
the AJ noted that, during the approximately six-month period prior to
complainant's removal, for the period from April 4-October 15, 2004,
ES received no discipline until November 15, 2005, when he was issued a
seven-day suspension and was charged with several unscheduled absences,
for a total of over 86 hours of unscheduled sick leave, emergency annual
leave, tardiness, leave without pay, and annual leave. During the same
period, from April 12-September 16, 2005, complainant had 2.34 hours of
unscheduled tardiness.
The agency offered three explanations for its treatment of complainant,
i.e., (i) complainant's record showed progressive discipline warranting
removal; (ii) her attendance/tardiness had not improved; and (iii)
MT had granted complainant a change of schedule to arrive at 8:00 a.m.,
instead of 7:00 a.m., when the other carriers, including ES, came to work.
Complainant contended, however, that the agency's explanations were not
true and unworthy of credence, that ES's absences were more egregious
than hers, and that her bid assignment, in fact, had an arrival time of
8:00 a.m.; thus, MT had not granted a request to change her schedule to
8:00 a.m., since that was her scheduled start time.6
The AJ found that, while complainant had progressive discipline,
the agency treated her differently than ES by imposing discipline for
minor instances of tardiness in a much more aggressive manner, i.e.,
from April-September 2005, the agency, through MT, issued discipline
to complainant three times for 2.34 hours of unscheduled tardiness,
and, for the same period, the agency issued no discipline for ES,
who had over 80 hours of unscheduled absences for the same period.
When the AJ attempted to explore this disparity with MT at the hearing,
MT answered that she treated each person's situation differently based
on her judgment of the employee's situation, explaining that "it's the
circumstances...you bring an employee in you will find out what's going
on with that employee individually [revealing] circumstances why you
wouldn't progress with one when you would do with the other." HT, p. 155.
As to complainant, MT stated she had made efforts to help her and allowed
a change in schedule, but that "after a while it was to a point where
I couldn't do anymore, it was her that needed to improve." HT, 146.
When the AJ questioned her about the favorable treatment accorded ES,
however, MT had difficulty responding. See, generally, HT 149-170.
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. An AJ's credibility determination based on the demeanor of
a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or
the testimony so lacks in credibility that a reasonable fact finder
would not credit it. See EEOC Management Directive 110, Chapter 9, �
VI.B. (November 9, 1999).
After a review of the record in its entirety, including consideration of
all statements submitted by the agency, including those not specifically
addressed, it is the decision of the Commission to affirm the AJ's
finding that the agency discriminated against complainant based on sex.
The AJ(s decision correctly states the facts, applies the pertinent
principles of law, and is supported by substantial evidence in the record.
Based on our review of the record, we find that the findings and legal
conclusions were correct. The agency's argument in support of its
appeal contended that complainant was not similarly situated to ES,
because ES had FMLA-protected absences. The AJ's analysis, however,
and our review of the agency's disciplinary actions given to complainant
and ES for absences from April - October 2005, do not show that ES's
absence were due to FMLA leave. The absences to which the AJ and this
decision refer are not absences identified as FMLA leave. Thus, the
agency's arguments do not overcome the AJ's findings of fact.
CONCLUSION
Accordingly, the agency's decision is reversed. The agency is directed
to comply with the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:7
A. Within 30 calendar days of the date this decision becomes final,
the agency shall reinstate complainant to her position as Letter Carrier
at the Normandy Branch facility, Miami, Florida, effective on or before
her last day of duty, with all benefits and rights restored, including
seniority, as if she had not been removed, including expungement of
all documents with regard to the disciplinary actions dated in 2005,
to include all related attendance records, that led to the issuance of
the Notice of removal.
B. The agency shall determine the appropriate amount of back
pay, with interest, and other benefits due complainant, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision.
C. To the extent that MT, SE, and SM remain employed by the
agency in any capacity, the agency shall conduct no less than six (6)
hours of training for MT and three (3) hours of training for SE and SM.
Such training shall address these employees' responsibilities with respect
to eliminating discrimination in the federal workplace and the equal
employment opportunity laws. The training shall place special emphasis on
prevention and elimination of discrimination and disparate treatment based
on sex with regard to disciplinary actions. The agency is advised that
the Commission does not consider training to be a disciplinary matter.
D. The agency shall consider appropriate disciplinary action against
MT and report its decision to the Commission. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
E. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Copies of all submissions shall be sent to complainant and her
representative, if any.
POSTING ORDER (G0900)
The agency is ordered to post at its Normandy Branch facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
___9/13/07_______________
Date
1 Complainant did not file a cross-appeal or comments on the agency's
appeal.
2 On March 10, 2006, the agency dismissed a portion of her complaint
pursuant to 29 C.F.R. � 1614.107(a)(1), finding that it failed to state
a claim. The Commission agrees with the agency's action and affirms
the dismissal action.
3 The agency applies a military system for tracking time counting one
hour as 1.0 units; .0167 units is the equivalent of one minute; .08 units
is five minutes; .10 units is six minutes; .167 units is ten minutes;
.334 is 20 minutes; .5 units is 30 minutes; and .75 units is 45 minutes.
4 The discipline dated May 19, a seven-day suspension, covered the period
April 12-May 6, 2005, and charged complainant with unscheduled leave for
tardiness for time periods from .09 to .12 units (5.4 to 7 minutes),
totaling 1.14 units, or about 68 minutes. The July 28 discipline,
a 14-day suspension, covered the period from June 15-June 23, 2005,
charging complainant with being late on unscheduled leave for periods
of .10 to .12 units, or 6 to 7 minutes; the total unscheduled leave was
.52 units, or 30 minutes.
5 Prior to 2005, complainant was issued a seven-day suspension on June
1, 2004, but the discipline was reduced to a letter of warning (LOW)
in the grievance procedure.
6 We note that complainant asked for a 30-minute change of schedule for
the summer months, but MT denied her request.
7 The AJ noted that complainant did not request or provide evidence of
compensatory damages.
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0720070028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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