0120131521
08-20-2013
Jacqueline Lewis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Jacqueline Lewis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120131521
Agency No. 4K230018912
DECISION
On March 4, 2013, Complainant filed an appeal from the Agency's January 30, 2013, final 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's facility in Richmond, VA.
On July 21, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On April 11, 2012, she became aware that her work hours for pay period 18, 2011 through pay period 01, 2012 were input as regular leave without pay (LWOP) instead of leave without pay in connection a claim with the Office of Workman's Compensation (OWCP), which affected her health benefits and entitlement to leave pursuant to the Family Medical Leave Act (FMLA). Complainant further alleged that the error was not corrected.
2. On March 27, 2012, her non-scheduled days were changed.
3. On unspecified dates, her duty hours were changed.
4. On August 20, 2012, her request for a schedule change and a PS Form 3971, Notification of Absence was denied.
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 within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
The instant 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").
Upon review of the record in this matter, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). To establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Once Complainant has established a prima face case, the Agency must rebut any inference of retaliatory animus raised by articulating legitimate, non-discriminatory reasons for the disputed actions. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Assuming that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination, we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions.
In claim 1, Complainant alleges that in reprisal for her prior protected EEO activity, the Agency failed to input her work hours correctly and failed to correct the error once she brought it to their attention. The record indicates that Complainant was sent home from work on October 8, 2010 pursuant to the Agency's National Reassessment Program (NRP), and returned to work on December 30, 2011. Complainant alleges that upon her return to work, the Agency was unwilling to work with her to correct its error concerning the calculation of her work hours. Specifically, Complainant asserts that after she advised an Agency official of the mistake in coding her work hours, the Agency failed to act. According to the Agency, Complainant's work hours were incorrectly coded as regular LWOP rather than OWCP related LWOP. The Agency further indicates that during the relevant time period, Complainant's supervisor was acting in the capacity of supervisor and followed the procedure established by the previous management staff with respect to Complainant's work hours. Complainant's supervisor stated that when Complainant advised her personally that her work hours had been incorrectly coded, she contacted the Injury Compensation Office in order to correct the error. The record indicates that adjustments to Complainant's pay were completed on April 11, 2012 and May 15, 2012.
Complainant further alleges that in claim 2, the Agency changed her non-scheduled days from Saturday and Sunday to Thursday and Sunday. Management witnesses stated that on December 28, 2011, Complainant accepted a modified job offer that included her non-scheduled days as Thursday and Sunday. Moreover, the Agency indicates that because Complainant is an unassigned full-time city carrier, she can be scheduled according to the needs of the Agency, and is not entitled to a set schedule.
Similarly, concerning claim 3, the Agency contends that Complainant's status as an unassigned carrier permitted the Agency to alter Complainant's schedule according to its needs. Specifically, with respect to Complainant's duty hours, the management witnesses indicated that her hours were changed from 8:30 a.m. to 5:00 p.m. to 10:00 a.m. to 6:30 p.m. as detailed in the modified job offer she accepted on December 28, 2011.
With respect to claim 4, management witnesses stated that Complainant's request for a schedule change was denied on August 20, 2012 because the volume of work on that day required Complainant's presence.
Complainant bears the ultimate burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to establish pretext. We find no evidence that the Agency's actions were motivated by retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision finding no discrimination.
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 20, 2013
__________________
Date
2
0120131521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131521