0120130134
02-20-2013
Grace H. Rauch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Grace H. Rauch,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120130134
Agency No. 4F-920-0150-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 27, 2012 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Sales/Service Distribution Associate, PS-06, at the Agency's Margaret L. Sellers Processing and Distribution Store in San Diego, California.
On December 20, 2011, Complainant filed the instant formal complaint alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected activity when:
1. on August 23, 2011, her supervisor grabbed her arm;
2. on August 29, 2011, she was issued a Seven (7) Day Suspension; and
3. on October 3, 2011, her supervisor made her submit a PS Form 3971 [Request for or Notification of Absence] because she did not show up early for overtime.
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On July 27, 2011, the Agency issued the instant final decision. The Agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that claim 2 constitutes a collateral attack on the negotiated grievance process. The Agency further noted that, as a result of the grievance, Complainant's 7-Day suspension was rescinded.
The Agency nevertheless addressed all three claims, including claim 2, on the merits, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of disability and retaliation.1 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
In response to Complainant's appeal, the Agency requests that we dismiss the appeal as untimely. The Agency argued that its delivery confirmation tracking system indicates that Complainant's attorney received the final decision on August 1, 2012, and so Complainant's September 17, 2012 appeal is therefore untimely.
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the record in this case contains insufficient evidence reflecting Complainant's attorney's receipt of the instant final decision on August 1, 2012. The record contains a United States Postal Service "Track & Confirm" print-out, which indicates a delivery on August 1, 2012 in "Torrance, CA" without further details of the address. We determine that there is no evidence, other than this generalized reference to a city and state, indicating that Complainant's attorney actually received the final decision on the date alleged by the Agency. Where, as herein, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Complainant has indicated that she received the final decision on September 12, 2012. We therefore find her September 17, 2012 appeal to be timely.
Disparate Treatment
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. Regarding claim 1, Complainant's supervisor denied grabbing Complainant's arm. Specifically, the supervisor stated that on August 23, 2011, she observed a car waiting at the drive-through window and Complainant was in the window area. The supervisor stated that she asked Complainant to assist the customer at the drive-through window but Complainant said " 'I'm not on the clock yet.' I asked her to leave the Window."
The supervisor further stated while on the way back to the office, Complainant interrupted a named clerk's transaction with a customer by asking the customer if she liked her hair and the customer replied that she liked it. The supervisor stated that Complainant continued to speak to the customer and, "I quietly informed [Complainant], 'there is a man there waiting and you are talking to a customer.' I asked her again to leave the Window, [work room floor]. She was in front of my walking to the back of the office. [Complainant] abruptly stopped at the beginning of the short hallway. She took a step toward me. She said, 'I have to be polite even though I'm not working.' I stepped back and brought my hands up. I answered, 'well, [the male customer at drive-through window] doesn't know that. He just knows he is not being helped.' I then asked [Complainant] to move forward to the back office. She finally complied with a direct order."
Regarding claim 2, the Manager, Customer Service (Manager) stated that during the August 3, 2011 pre-investigative interview with Complainant concerning her attendance, he represented management. The Manager stated that following the pre-investigative interview, he decided to issue Complainant a Notice of 7-Day Suspension for failure to be regular in attendance. The record reflects that in the August 26, 2011 Notice of 7-Day Suspension, Complainant was absent or tardy on the following dates: April 28, 2011 (4.70 USL); May 5, 2011 (8 hours USL); May 7, 2011 (.14 hours tardy); May 10-14, 2011 (29.28 hours USL); June 7, 2011 (.10 hours tardy); July 7, 2011 (8 hours USL); and July 27, 2011 (8 hours USL).
Furthermore, the Manager stated that Complainant's disability and prior protected activity were not factors in management's determination to issue her a Notice of 7-Day Suspension.
The Manager, Customer Service Operations stated that she agreed with the Manager's decision to issue Complainant the Notice of 7-Day Suspension because she was not regular in attendance. The Manager, Customer Service Operations, acknowledged that Complainant asserted that she had her doctor's excuse for April 28, 2011. However, the Manager, Customer Service Operations, stated that even though Complainant had the doctor's excuse "she was still irregular in attendance."
With respect to Complainant's allegation that she called in sick for July 7, 2011, using her Family Medical Leave Act (FMLA) leave and worker's compensation, the Manager, Customer Service Operations, stated, "at the time the case was pending. Both FMLA and workman's case was denied."
Regarding claim 3, the supervisor stated that on October 3, 2011, she instructed Complainant to submit a PS Form 3971 because she did not report to work early for overtime. Specifically, the supervisor stated that Complainant "failed to report according to schedule. She was not disciplined but directed to fill out a 3971 to document that [Complainant] would not be paid for that time period."
Finally, Complainant alleged that she was not told to be in at 9:00 a.m. on October 3, 2011. In addition, she stated that, because she is a full-time bid employee, she is not on the overtime desired list. However, the supervisor stated that Complainant "does not need to be told. The schedule was posted at the appointed time." The supervisor further stated that during the relevant period "the needs of the service required overtime. [Complainant] was being forced-in before her tour. The overtime rule did not change until Dec. 31, 2011."
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.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her disability and prior protected activity.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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 because the preponderance of the evidence of record does not establish that discrimination occurred.2
Finally, we note that Complainant, on appeal, raises new claims that in February 2012, management abolished her position "because they said I was not needed and turn around and put up the same position with the same day off." Complainant further argues that on September 14, 2012, management changed her work hours without advance notice. These new claims were not previously raised by Complainant and it is inappropriate for Complainant to raise them for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims for the first time on appeal, she should initiate contact with an EEO Counselor.
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
February 20, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 Because we affirm the Agency's finding of no discrimination concerning claim 2 as stated above, we find it unnecessary to address it on alternative grounds (i.e. failure to state a claim).
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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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