0120131665
08-14-2013
Mary M. Grove, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Mary M. Grove,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131665
Hearing No. 532-2012-00097X
Agency No. 4C-450-0002-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 15, 2013 final action 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor, Customer Services at the Agency's New Albany, Ohio Post Office.
On February 3, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (white), and age (over 40) when:
1. on August 30, 2011, she was issued a Proposed Letter of Warning in lieu of 7-Day Suspension, upheld by Letter of Decision dated February 2, 2012;
2. on September 8, 2011, she was issued a Performance Improvement Plan (PIP); and
3. on unspecified dates, she was denied pay for hours that she worked.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On February 4, 2010, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of race, sex, color and age discrimination. The AJ further found that even if Complainant established a prima facie case of race, sex, color and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the Postmaster was the deciding official to issue Complainant a Proposed Letter of Warning in lieu of 7-Day Suspension "to correct her performance and to address her failure to follow my instructions." In the August 17, 2011 Proposed of Letter of Warning, the Postmaster placed Complainant on notice she was being issued a proposed letter of warning for her failure to complete the End of Day Reconciliation Report on Postal Report (Report) on May 26, 2011; her failure to respond to a text message regarding her failure to complete the Report; and her failure to notify the Postmaster/Post Office Operations Manager that she pulled the Report at 8:41 p.m.
Specifically, the Postmaster stated that on May 26, 2011, Complainant did not pull a Report before leaving for the day and "this report is a headquarters required report. This was the fourth time that she failed to pull reports that are required before leaving the office at this office. She was given additional training and official discussions to reinforce the importance of closeout reports. She is a veteran supervisor and has had extensive experience and training and is well versed in the importance of the close out reports." The Postmaster stated that as Postmaster, it is her responsibility to assure that the Report is performed daily because "it is vital to the protection of our EXFC performance. It assures that all mail entered through the BMEU unit has been processed and dispatched. It requires an inspection of the workroom floor and dock to verify that nothing has been mishandled. When I am notified of this failure I must return to the office and perform the report if I am unable to contact [Complainant] or the person responsible."
Further, the Postmaster stated that Complainant did not respond to the Postmaster's telephone message to perform the report and call her and the Post Office Operations Manager "so that we knew it had been completed. I also sent a text message requesting the same thing. After no response, I traveled thirty-five miles to my office to perform the report. I arrived at 8:59 PM and pulled the report. When I placed the report in the file, I discovered that [Complainant] had returned to the office and pulled the report at 8:41 PM. She did not call to let me know that she had received my messages and would be returning to the office to pull the report. She did not call to let me know that she had performed the report."
Moreover, the Postmaster stated that the Proposed Letter of Warning in lieu of 7-Day Suspension was the next step in corrective action. I issued the corrective action following the protocol established by the USPS." The Postmaster stated that Complainant's race, sex, color and age were not factors in her determination to issue her the Proposed Letter of Warning.
Regarding claim 2, the AJ noted that on September 8, 2011, Complainant was issued a PIP by the Postmaster, to be in effect through March 8, 2012. The AJ further noted that twenty-nine duties/goals were identified in the PIP for Complainant to meet. The AJ noted that the record reflects that no action was taken in relation to the PIP after it was issued.
The Postmaster stated that on September 28, 2011, she issued Complainant a PIP "after consulting with Labor Relations on the correct procedure to handle a situation when the corrective action, remedial training and discussions had failed to result in improved performance."
The Postmaster stated that during the relevant period, Complainant "was making numerous errors in timekeeping. The schedules for the clerks and carriers that she posted often resulted in duplicate staffing so clerks and carriers were getting paid and sent home. Preferential treatment was given to the employees that she liked...the employee refused to post a clerk OT calendar so that the employees knew that the OT was issued fairly and as equal as possible...street observations forms were filled out while sitting in the office instead of going out on the street and actually observing the driving practices of the carriers...there were employees that she did not like. She would talk to these employees with a total lack of dignity and respect at times that I was out of the office. Leave was given to favorites and denied to those she did not like. I wanted my employees to be treated well and fairly. She did not do her reports timely and my office would end up on lists published for those failures. In short the PIP was issued to improve her performance and to protect the employees that she was supervising."
The Post Office Operations Manager stated that he informed the Postmaster that the September 8, 2011 PIP "was not valid and offered to provide with a valid PIP. Postmaster wanted to utilize what had been issued. The PIP issued expired March 8, 2012 and during a Redress it was discussed as a mute point as no action was ever taken."
Regarding claim 3, the AJ noted that Complainant was paid for hours worked on September 2, 2011 and that allegations that she was not paid for other dates were untimely raised. Specifically, the AJ noted in her affidavit, Complainant identified four dates that she "worked but did not get paid": December 3, 2009; April 26, 2010; April 27, 2010 and September 2, 2011." The AJ determined that the first three alleged discriminatory events were beyond the 45-day limitation period for making timely EEO Counselor contact. The AJ further noted that on April 26 and 27, 2010, Complainant was assigned to the Agency's Reynoldsburg, Ohio Post Office, not the New Albany Post Office.
Further, the AJ noted that Complainant alleged that she was denied eight hours of pay for the hours she worked on September 2, 2011. Specifically, the AJ noted that Complainant stated that she left work early that day due to an emergency involving her mother. The AJ noted that the Postmaster stated that Complainant did not file a PS Form 3971 for September 2, 2011. Specifically, the Postmaster stated that Complainant "knows that any legitimate complaints would have been addressed immediately, any errors found corrected, and yet she said nothing to me about her pay or leave for these dates. The only date she listed in the original complaint, September 2, 2011, was investigated immediately. I had agreed to correct the error that she had claimed in the REDRESS meeting. On September 2, 2011, I had extended professional courtesy and listed the absence as scheduled annual leave even though she left the office as soon as I arrived for the day saying that she had received a call from her sister saying that her mother was upset and insisting that she come home. Annual leave can only be issued in eight-hour increments. She had worked about 2.5 hours before she left. She verbally asked for emergency annual so that she could go home and get her mother calmed down."
The Postmaster stated that during the REDRESS meeting, Complainant claimed Family Medical Leave Act (FMLA) protection and "partial day leave may be issued for FMLA protected absences. However, there was no FMLA protection as she claimed and I was unable to change the AL to FMLA SLDC. She said there had been an error made by shared services and she did have protection. I contacted shared services to verify this allegation. The reply stated that there was no FMLA protection because she had failed to provide documentation."
Based on this evidence, the AJ concluded that Complainant failed to prove that she was discriminated against as alleged. The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. Complainant argues that on August 17, 2012, the Officer-in-Charge submitted multiple pay adjustments "in my name to correct timekeeping errors created by [Postmaster]." Complainant further argued that the former Postmaster of the Pataskala, Ohio Post Office is willing to prepare an affidavit to dispute the Postmaster's statement that Complainant made timekeeping errors.
In response, the Agency argued that there was no evidence that the new facts were unavailable when Complainant completed her affidavit. Specifically, the Agency stated that the pay adjustment made by the Officer-in-Charge occurred several weeks after the investigation of the instant complaint closed and Complainant requested a hearing. The Agency further stated that Complainant failed to show that any of the new evidence was unavailable when she completed her affidavit and she had not submitted a sworn affidavit explaining that the new information was unavailable when the Agency's motion for summary judgment was filed or that she used her best efforts to obtain the information in response to its motion.
Finally, the Agency argued that Complainant attempted to list the Postmaster as a comparator, and that Complainant is not similarly situated to her immediate supervisor.
ANALYSIS AND FINDINGS
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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's decision to resolve this case by summary judgment or the ultimate finding of no discrimination. Complainant has not sufficiently identified material facts in dispute and we find that the AJ's findings of fact are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, sex, color or age.
The Agency's final action implementing the AJ's decision finding no discrimination 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 14, 2013
__________________
Date
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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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