0120131680
08-05-2013
Denise Y. Caison, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Denise Y. Caison,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131680
Agency No. 4G-330-0244-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 4, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Country Lake Branch in Miami, Florida.
On May 6, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On June 18, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), national origin (African), color (black), and in reprisal for prior protected activity when1:
1. beginning April 25, 2012 through June 14, 2012, she was placed in an Emergency Placement Off-Duty, Non-Pay Status;
2. on or around May 16, 2012, she was harassed when her manager tried to force her to deliver to a customer who had threatened her;2
3. on September 14, 2012, she was issued a Notice of Removal; and
4. on October 18, 2012, she was issued a Letter of Warning.3
The record reflects that on April 25, 2012, the Agency's Office of Inspector General (OIG) issued a report concerning a charge that Complainant had "routinely falsified delivery scans as delivered while she was still in the post office prior to leaving for her delivery route." The OIG report also found that over a period of 13 days in April 2012, Complainant had scanned 514 items as having been delivered prior to leaving the facility to go out on her delivery route.
The record further reflects that Complainant also scanned two items as delivered for a particular postal customer that were never received by that customer. Consequently, Complainant was placed in an Emergency Placement Off-Duty, Non-Pay status based on the OIG investigation.
After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 4, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed claim 2 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed claim 4 pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.
The Agency then proceeded to address claims 1 - 4 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, national origin, color and reprisal discrimination. The Agency further found that assuming arguendo that Complainant established a prima facie case of race, national origin, color and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, Complainant's supervisor stated that on April 25, 2012, she placed Complainant in an Emergency Placement Off-Duty Non-Pay status based on the OIG report showing that Complainant "falsified scans by scanning parcel delivered while still in the Post Office before going to her route." The supervisor stated that during the relevant period she was not aware of Complainant's prior protected activity. Furthermore, the supervisor stated that Complainant's race, national origin and prior protected activity were not factors in her determination to place her in an Emergency Placement Off-Duty Non-Pay status.
Regarding claim 2, the supervisor stated "I was not directly involved with this event, but was made aware of it by [Complainant] that she had a situation with a customer and [Manager, Customer Service (manager)] and [named Agency official] was handling her case. The event was handled between the manager, Complainant's union representative and the Postmaster.
The manager stated that during the relevant period "I was not aware that any employee was allegedly being harassed."
Regarding claim 3, the supervisor stated that on September 7, 2012, she issued Complainant a Notice of Removal for unsatisfactory performance. The record contains a copy of the September 7, 2012 Notice of Removal. Therein, the supervisor notified Complainant that on April 24, 2012, the manager contacted the OIG regarding a complaint of internal mail theft. Specifically, the manager stated that she received a complaint from a customer from Complainant's route stating that her two Delivery Confirmation numbers were scanned as delivered but the parcels never arrived. The record reflects that during the investigative interview, Complainant stated she scanned the parcels as delivered when she gets to the customer's door.
Further, the supervisor notified Complainant that she later acknowledged that she was not truthful during the interview and "you routinely scan all your parcels as delivered prior to leaving the station. You stated you did this to save time and not to commit fraud. The [OIG Special Agent] explained you that if the scans are done in the station, how [can] Postal Service ...maintain the integrity of the mail [?]" The supervisor stated that she found Complainant's response "did nothing to excuse your actions. Actions of the nature cited above have a negative impact on the efficiency and economy of the Postal Service and cannot be tolerated."
The supervisor determined that Complainant was in violation of Section 665.13 "Discharge of Duties" of the Employee and Labor Relations Manuel. The supervisor also determined that Complainant was in violation of the following sections of the Handbook M-41 23 Data Collection of Special Services Mail: 232.1 "Delivery Events" and 232.2 "Non-delivery Events."
Regarding claim 4, the supervisor stated that on October 18, 2012, she issued Complainant a Letter of Warning based on her unsatisfactory performance. Specifically, the supervisor stated that she gave Complainant a discussion about missing MSP scans in the office and during the discussion, Complainant "stated that she clearly understood that she missed the scan and that she would correct her performance." The supervisor stated, however, Complainant "continued to miss the scan again. When this continue to happen I had to take her back into the office to speak to her again and it was at this time corrective action had to be taken. It is her job to scan all scans every day, and during the interview she was made aware of this and stated that she understood that it's her job to do so...she missed the scan several times more after I interviewed her the first time and nothing was done about it."
Furthermore, the supervisor stated that during the interview Complainant was asked if she was setting up the scanner properly and "her steward representative and I explained to her the correct way to set it up if she was having problems and she stated that she knew how to set it up properly. But she still continued to miss the scan. It is my job to address the employee on job performance. That is why this letter was issued to her."
Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant states that the investigation was biased because the investigator refused to send affidavits to all witnesses, [and] the Complainant has shown that she was in fact discriminated against on all claims." Complainant further argues that the manager was not credible because she signed a grievance resolution "concerning her behavior of trying to force the Complainant to deliver mail to a customer who was threatening the Complainant...all of [manager's] answers denying that she knew about Complainant's EEO activity are false."
Further, Complainant argues that the Agency improperly dismissed her amended claim in its November 27, 2012 Acknowledgement and Dismissal of Amendment. Specifically, Complainant states that she was discriminated against in reprisal for prior protected activity when she was denied overtime in a grievance and 'the grievance was concerning Complainant's suspension on April 25, 2012 in which she filed this EEO complaint."
The instant appeal followed.
ANALYSIS AND FINDINGS
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, he must first establish a prima facie 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).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not sending affidavits to all witnesses. We note Complainant's extensive arguments on appeal, which include but are not limited to, purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. We also find although the Agency did not specifically address Complainant's harassment allegation, we find that the incidents of harassment identified by Complainant are not sufficiently pervasive or severe to create a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, national origin, color and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning claims 1 - 4 because the preponderance of the evidence of record does not establish that discrimination occurred.4
In addition, we note that Complainant, on appeal, argues that the Agency improperly dismissed the amended claim that Complainant was discriminated against on the basis of reprisal when on November 14, 2012, she was not paid overtime as part of a grievance settlement. In its Acknowledgement and Dismissal of Amendment dated November 27, 2012, the Agency dismissed the overtime claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that this claim constituted a collateral attack of the negotiated grievance process.
Upon review, we determine that the overtime claim constitutes a collateral attack on the negotiated grievance process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the grievance process.
Accordingly, the Agency's final decision dismissing Complainant's overtime claim for failure to state a claim is AFFIRMED.
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 (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
August 5, 2013
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1 - 4.
2 The record reflects that the alleged discriminatory event actually occurred in January 2011, not on or about May 18, 2012.
3 The record reflects that claims 3 - 4 were later amended to the instant formal complaint.
4 Because we affirm the Agency's final decision finding no discrimination concerning clams 2 and 4 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds. Additionally, Complainant, on appeal, does not challenge the August 23, 2012 partial dismissal issued by the Agency regarding one other amended claim (that she was discriminated against on the bases of race, national origin, color and in reprisal for prior EEO activity when on or around May 16, 2012, she was denied FMLA sick leave). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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