0120110566
09-13-2012
Mabel A. Cornett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mabel A. Cornett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120110566
Hearing No. 450-2010-00205X
Agency No. 1G-758-0011-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 2010 final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Flat Sorter Machine Operator at the Agency's East Texas Processing and Distribution Center in Tyler, Texas. From May 1, 2009 through October 31, 2009, Complainant was absent from work a total of 89 days. On numerous occasions during that time, Complainant was coded as absent without leave (AWOL). Complainant contested being charged AWOL for August 13, August 25, and September 2, 2009. On those dates, Complainant had requested leave by the Agency's automated call-in system. The Manager, Distribution Operations (M1) charged Complainant AWOL on those dates believing that she had exhausted all of her available Family Medical Leave Act (FMLA) leave and had no annual or sick leave available.
On or about May 13, 2009, the Agency's Office of Inspector General (OIG) received information that Complainant was taking leave from the Agency while working as a receptionist for a car dealership on those days. The OIG began an investigation and, on July 27, 2009, the Distribution Operations Manager (M1) asked Complainant to change her schedule so that she could attend a meeting with the OIG. Complainant agreed to attend the meeting; however, she demanded out-of-schedule pay and submitted a workers' compensation "Notice of Occupational Injury" form reporting stress.
On August 20, 2009, M1 received a copy of the OIG investigation. The report stated that Complainant had used unscheduled sick leave on multiple occasions from November 2008 through March 2009, and then reported to work for another employer. The report noted that despite multiple attempts, Complainant failed to show up to be interviewed regarding the matter.
On October 19, 2009, M1 conducted a pre-disciplinary meeting with Complainant regarding the OIG report. On November 5, 2009, Complainant attended a meeting with her immediate supervisor (S1) and submitted a written request for reasonable accommodation. Specifically, Complainant requested that she be allowed to rotate every 15 minutes when running certain equipment. The accommodation request was considered; however, when Complainant returned to work on November 10, 2009, she was issued a Notice of Removal, effective December 10, 2009, citing the findings in the OIG report.
On October 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:
1. On August 13, August 15, and September 2, 2009, her leave was coded as absence without leave (AWOL).
Additionally, on January 19, 2009, Complainant amended her complaint and alleged that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when:
2. On December 10, 2009, she was removed.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion and issued a decision without a hearing on September 14, 2010.
In the decision, the AJ initially determined that Complainant had not established a prima facie case of discrimination on the alleged bases. Nonetheless, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), the record revealed that Complainant had been charged AWOL on August 13, August 25, and September 2, 2009, because M1 believed that Complainant had exhausted all of her available FMLA, sick, and annual leave. The record indicated that Complainant had 8 hours of sick leave available and a negative annual leave balance to cover the 24 hours. Subsequently, Complainant was paid for 8 hours of sick leave for August 13, 2009, but remained AWOL for August 25 and September 2, 2009.
Regarding claim (2), Complainant was issued the Notice of Removal based on the findings of the OIG's report. The OIG report found that Complainant had called in sick at the Agency and reported to work for another employer on multiple occasions from November 2008 through March 2009. As a result, M1 issued the Notice of Removal for unsatisfactory conduct.
The AJ determined that Complainant had presented no evidence that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated or retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision. Complainant presented no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming for the sake of argument that Complainant established a prima facie case of disability discrimination and reprisal, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant was initially charged AWOL on August 13, August 25, and September 2, 2009, because M1 believed that Complainant had exhausted all of her available leave. ROI, at 179, 221. The Agency subsequently corrected this and paid Complainant sick leave for August 13, 2009. Id. at 234. Complainant's absences on August 25 and September 2, 2009 remained AWOL, because she failed to provide acceptable medical documentation, had exhausted her FMLA leave and had no available annual leave. Id.
Finally, regarding claim (2), M1 affirmed that Complainant was issued the Notice of Removal for unsatisfactory conduct after the OIG's investigation revealed that she was absent from work at the Agency while working at another job. ROI, at 213. The Notice noted that the OIG attempted to interview Complainant multiple times; however, Complainant failed to show up for an interview. Id. at 230. As a result and pursuant to the collective bargaining agreement, management issued Complainant the Notice of Removal.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
To the extent that Complainant challenges the findings in the OIG report, the Commission notes that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept, 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OIG proceeding was in that proceeding itself. In addition, while Complainant has not alleged denial of reasonable accommodation, the Commission further notes that Complainant requested an accommodation on her last day at work and the Agency was in the process of considering the request when she was issued the Notice of Removal.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's disability or her prior protected EEO activity were factors in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated or retaliated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
September 13, 2012
Date
1 Complainant initially included race (Caucasian) and sex (female) as bases of discrimination; however, she withdrew those bases in her pre-hearing submissions.
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0120110566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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