01a45826
05-04-2005
Patricia L. Bena, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia L. Bena v. United States Postal Service
01A45826
May 4, 2005
.
Patricia L. Bena,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45826
Agency No. 1K-211-0104-01
Hearing No. 120-2004-0275X
DECISION
Complainant filed an appeal with this Commission from the August 11, 2004
agency decision finding no discrimination and, also, dismissing claim 4,
on the alternative grounds of failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
In her consolidated complaint, complainant alleged that she was
discriminated against on the bases of race (White) and in reprisal
for prior EEO activity when: (1) on July 13, 2001, the Supervisor of
Distribution Operations (SDO) angrily screamed at and called security
for complainant. Complainant alleges further that she was discriminated
against on the basis of reprisal for prior EEO activity when: (2)
on January 16, 2002, complainant was assigned to other operations
while clerks with less seniority and on light duty worked complainant's
assignment; (3) on June 20, 2002, complainant was sent to work in another
operation and an unassigned clerk worked in complainant's section; (4)
on June 27, 2002, complainant was reprimanded on her lunch break while
others were not; and (5) on July 26, 2002, complainant's beginning tour
was changed, resulting in her being charged .11 units of annual leave.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). In a June 24, 2004 Order of Dismissal, the
AJ dismissed complainant's request for a hearing and remanded the case
to the agency for a decision as a sanction pursuant to EEOC Regulation
29 C.F.R. � 1614.109(f)(3).
Concerning the history of the complainant's complaint pending hearing, the
AJ noted in his June 24, 2004 Order of Dismissal that on March 22, 2004,
he issued an order requiring that complainant file a prehearing statement
by May 11, 2004. The AJ also ordered that a witness list be provided on
June 4, 2004, the date the prehearing conference was scheduled. The AJ
stated that by letter postmarked June 2, 2004, complainant requested
an extension of time to file her prehearing statement and witness list
because she had not received answers to her interrogatories. The AJ
noted that complainant failed to attend the prehearing conference despite
having received adequate advance notice of the prehearing conference and
did not provide a telephone number where she could be contacted for the
prehearing conference. The AJ stated that on the date of the prehearing
conference, complainant was called at her home and a message was left
on the answering machine for complainant to call the AJ or the agency's
attorney. The AJ then issued an Order on June 7, 2004, for complainant
to show cause within 10 days from date of the issuance of the Order why
complainant's request for hearing should not be dismissed for failure to
file a prehearing statement, a witness list, and to attend the prehearing
conference. The AJ noted that complainant's response to the Order to show
cause was postmarked June 14, 2004. The AJ also noted that complainant's
response did not indicate that she had served the agency and the AJ deemed
complainant's response an ex parte submission and consequently not timely.
In dismissing complainant's hearing request, the AJ stated that,
even considering complainant's response to his Order to show cause,
complainant had failed to provide adequate explanation regarding her
noncompliance with the orders of the AJ and by not fully participating in
the hearing process by attending the prehearing conference and serving
the prehearing statement and witness list on the agency. The AJ also
noted that complainant failed to disclose the time period that she was on
emergency medical leave, what her condition was, or to provide medical
documentation. The record reflects that on June 24, 2004, the date of
his dismissal of the hearing request, the AJ also denied complainant's
request for additional time to submit her prehearing statement and her
list of witnesses.
The agency issued a decision pursuant to the AJ's Order of Dismissal,
concluding therein that it had not discriminated against complainant
and that claim 4 failed to state a claim. Regarding all of the claims,
the agency concluded that complainant failed to establish a prima facie
case of race or reprisal discrimination. The agency further concluded
that even if complainant established a prima facie case as to each of
the claims, the agency articulated legitimate, nondiscriminatory reasons
for its alleged actions and that complainant had not demonstrated that
the agency's articulated reasons were not credible or a pretext to mask
prohibited discrimination.
Regarding claim 1, the agency stated that security was called because
complainant failed to follow instructions to report to another unit.
The agency further stated that complainant was working on the "HASP"
with four other clerks, the SDO instructed complainant and the clerks to
report for relief on the "FSM 1000" and that all the clerks reported to
"FSM 1000," except for complainant. Because complainant refused to report
to "FSM 1000," the SDO called security. The agency also noted that the
SDO had called security on a Black male and a Black female and a White
male. The agency stated in its decision that the SDO was complainant's
supervisor and that the supervisor did not yell at complainant.
Regarding claim 2, the agency stated that senior "FSM"clerks keyed on the
"FSM" every day, that complainant was on her non-work day on January
16, 2004, that complainant was the most junior clerk, and that it was
automatic that extra clerks work as preppers or work in "HASP."<1>
Concerning claim 3, the agency stated that complainant is assigned to
the "FSM 1000," pay location 278, and that on June 20, 2002, complainant
worked in her regular assignment.
Regarding claim 4, the agency stated that claim 4 failed to state a
claim because complainant was not aggrieved, noting that complainant
had not shown that she was harmed because there was no evidence of any
adverse action being taken by management against complainant. The agency
also stated that complainant was not discriminated against, noting that
complainant was not reprimanded on June 27, 2002, and that the SDO stated
that she had never reprimanded any clerk on that individual's lunch hour.
Addressing claim 5 in its decision, the agency stated that the SDO had no
idea about what complainant was referring to regarding the annual leave
and that although the SDO asked complainant to provide documentation to
support her statement, she had not heard anything from complainant.
On appeal, complainant asserts that she was never provided any
information regarding the date or time of a prehearing conference.
She asserts further that a message was left on her answering machine
on the date of the prehearing conference. Complainant asserts that she
was on emergency medical leave from April 21, 2004, until June 5, 2004.
She also states that she sent the AJ her prehearing statement within 10
days of the AJ's Order to show cause.
The record contains an undated letter from complainant to the AJ in which
complainant stated that she had been on emergency medical leave and that
the agency's attorney had been informed by complainant's supervisor that
complainant was on emergency leave. Complainant further stated that
she did not meet the deadline because an emergency medical situation
took precedence.
Also contained in the record is a Family and Leave Act Form WH-380
signed by an internist on May 1, 2004, with regard to complainant's
request for leave to care for her mother.<2> The Form WH-380 reflects
that complainant's mother had broken her ankle and was confined to a
wheelchair. The Form WH-380 also reflects that the condition began on
April 23, 2004, and that complainant's mother was "presently completely
incapacitated" for six to eight weeks. The Form WH-380 also reflects
that complainant's mother was confined to her home and needed full-time
care and required assistance with her safety and personal needs.
The WH-380 reflects that complainant would need to take intermittent
time from work to transport her mother to medical appointments and that
the probable duration of the mother's condition would be a lifetime.
As an initial matter, the Commission finds that the AJ's dismissal of
the request for hearing and its remand to the agency for a decision
was proper. While complainant submitted a Form WH-380 on appeal,
the form does not establish that complainant was so incapacitated by
having to care for her mother that she could not comply with the AJ's
orders and participate in the hearing process. In addition, the record
reflects that the AJ's March 22, 2004 Order occurred before the injury
to complainant's mother.
Regarding claim (1), the SDO denied screaming at complainant on July
13, 2001. She stated that she calmly instructed complainant and other
clerks to report to relief on the "FSM 1000" and that complainant went to
Person A so that she would not have to work for the SDO. The SDO stated
that she told complainant that if she did not report to "FSM 1000,"
the SDO would call security. The SDO further stated that she called
security to have complainant removed from the building. She further
stated that she has called security for one Black female employee,
one Black male and one white male.
Regarding claim 2, the SDO denied that complainant was assigned to
other operations while clerks with less seniority and on light duty
worked her assignment. She stated that complainant was assigned to
her regular assignment on January 16, 2002.
Regarding claim 3, the SDO denied that complainant was assigned to other
operations while an unassigned clerk worked in complainant's section.
She further stated that complainant's work assignment on June 20, 2002,
was her regular assignment. The SDO stated that complainant was assigned
to "FSM 1000," pay location 278. Concerning claim 4, the SDO denied
that she reprimanded complainant on her lunch break on June 27, 2002, or
any other employees on their lunch breaks. Concerning claim 5, the SDO
stated that she had no idea what complainant was talking about and that
complainant failed to show the SDO documentation to explain her problem.
The Commission finds that even assuming that complainant established
a prima facie case of race and reprisal discrimination, the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to establish that any of the agency's actions
were motivated by discriminatory animus. Because of our disposition,
we do not address whether claim 4 may be dismissed for failure to state
a claim.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
May 4, 2005
__________________
Date
1The agency indicated that a "non-work" day
meant that complainant was at work on her off day in an overtime status.
2Complainant submitted the Form WH-380 on appeal.