0120131069
06-12-2013
Lillie Mae Jones, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Lillie Mae Jones,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131069
Agency No. 1K-234-0007-12
DECISION
Complainant filed an appeal from the Agency's November 27, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Mail Processing Clerk at the Agency's Norfolk Processing and Distribution Center facility in Norfolk, Virginia.
On May 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (Not Specified), sex (female), color (Black), age (51), and reprisal for unspecified EEO and prior union activity when, on February 3, 2011, management did not permit Complainant to put in for prime-time leave and, on February 17, 2012 denied her request for a change of schedule in connection with her prime-time leave request.
The record shows that Complainant had four prior complaints in which she named the same management officials, as named herein, as the responsible officials. The record indicates that she alleged discrimination because of EEO and union activity in those prior complaints; and management was aware of her activity. Her most recent complaint closed on October 11, 2011, four months prior to the incidents at issue.
The pertinent record shows that Article 7 of the Local Memorandum of Understanding (LMOU) between the Agency and the American Postal Workers Union, Local 262 governs selections of time off during the choice vacation periods. That National Agreement, referenced as Article 10, Section 4, B2 provides that management determines the date for submission of applications for leave for the choice vacation periods. The Agency opened a prime-time leave selection period in January 2012. At the time the leave selection period opened, Complainant was not sure which dates she wanted to request. Her supervisor averred that he gave Complainant a prime-time leave sign-up sheet on January 9, 2012. When Complainant did make her request for leave, her supervisor would not allow her to request for her choice vacation days. Her supervisor advised Complainant that she needed to make her selection within the time allowed by Article 10.B of the LMOU. She was supposed to return by the next workday after being offered the choice, but she did not Subsequent to the filing of the complaint, the issue was resolved as part of the grievance process.
With regard to issue 2, the record shows that Complainant submitted PS Form 3189, Request for Temporary Schedule Change for Personal Convenience, dated February 17, 2012 and resubmitted the form on March 29, 2012. Management denied the February 17, 2012, but granted the resubmitted request of March 29, 2012. Complainant requested schedule changes, but she did not indicate the dates. Management denied her request.
In addition, the record shows that no other employee applied for, or was granted, prime-time leave or schedule changes during the period at issue.
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 Agency decision concluded that Complainant failed to establish a nexus for her claim of retaliation because the four months period from the closure of the case and incidents was too remote to establish an inference of retaliation.
The Agency reasoned that Complainant failed to show that her race, national origin, sex or age were factors because Complainant did not identify others who were similarly situated and that the Agency had treated them more favorably.
The Agency found no retaliation because the period between the last EEO activity and the incident at issue was four months which the Agency reasoned was too long a period to establish a nexus.
Next, the Agency found that, assuming that Complainant established the elements of her prima facie claims, the Agency stated a reason for its action (that Complainant had not submitted her response in a timely manner) and Complainant failed to show the Agency's reason to be a pretext for unlawful discrimination.
The Agency also found that the actions (denying prime-time leave and the schedule requests) were not severe or pervasive as to create a hostile work environment.
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").
Title VII (at Section 717(a)) and the Age Act (at Section 633(a) specifically require that all personnel actions affecting federal employees or applicants "be made free" from any unlawful discrimination. A claim of discriminatory disparate treatment may be examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail under this analysis, she would have to show that the Agency subjected her to an adverse employment action under circumstances that, if unexplained, reasonably gives rise to an inference of discrimination. 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).
We find that there is insufficient evidence to support an inference of race, color, sex, or age discrimination or retaliation based on the record before us. There is no evidence that the Agency granted a similar request for any other employee or that the Agency treated any other employee more favorably than Complainant.
The usual pattern of initial analysis may be dispensed with in this case since the Agency articulated legitimate reasons for its conduct. United States Postal Service v. Aikens, 460 U.S. 711, 713-717 (1983). To ultimately prevail, Complainant must prove by a preponderance of the evidence that the Agency's explanation is a pretext. Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).
The Agency stated that management denied her request because Complainant did not make her decision within the time allotted by her supervisor and in accordance with the LMOU.
Our review of the record reveals that Complainant has not proven, by a preponderance of the evidence, that the Agency's stated reasons for denying the Prime-time leave or the change in scheduling was a pretext for unlawful discriminatory or retaliatory animus. First, the record does not show that others were accorded better treatment. Second, Complainant does not dispute that she did not submit her reply to her supervisor within the allotted time. Third, Complainant was actually provided the requested leave via a grievance settlement.
Further, to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment or had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment, and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We find that the incidents were not severe or pervasive to constitute harassment or based on Complainant's statutorily protected classes.
Finally, it is not our role to evaluate whether the action was defective procedurally or warranted. Based on the record, we find that the actions were not unlawful.
CONCLUSION
Accordingly, we AFFIRM the Agency's decision because the preponderance of the evidence supports the 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
June 12, 2013
__________________
Date
2
0120131069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131069