0120130149
02-15-2013
Patricia Schott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Patricia Schott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120130149
Agency No. 4E-980-0133-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 19, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency's Wenatchee, Washington Post Office.
On November 5, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (Caucasian), sex (female), color (white), and in reprisal for prior EEO activity when1:
1. since September 2011, she has been subjected to repeated official discussions;
2. on September 1, 2011, she was subjected to an investigative interview which led to her being issued a Letter of Warning for attendance on September 22, 2011;
3. on December 1, 2011, she was notified that she would be charged as Absent Without Official Leave (AWOL) since October 15, 2011, as she had not provided the requested medical documentation nor had she responded to the investigative interview request;
4. on December 23, 2011, she was issued a Notice of Removal for being AWOL;
5. on February 4, 2012, she received a letter requiring her to report for an investigative interview;
6. on February 12, 2012, she was issued a letter of demand for health premium benefits;
7. since February 2011, management assigned her duties to others in an effort to minimize the work hours assigned to her bid job; and
8. in September 2011, she was not permitted to transfer to the maintenance craft.2
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On September 19, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, and color discrimination. The Agency found, however, that Complainant established a prima facie case of reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of race, sex, color, and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex, color, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant's immediate supervisor denied subjecting Complainant to repeated official discussions since September 2011. Specifically, the supervisor stated "I have not had any official discussions with [Complainant] since September 2011. All of the official discussions occurred prior to September of 2011. The official discussions that were conducted prior to September 2011 were in regard to her attendance." The supervisor further stated that he gave Complainant many opportunities to correct her irregular attendance before taking discipline action.
The supervisor stated that on September 22, 2011, Complainant was issued a Letter of Warning for Failure to be Regular in Attendance. Specifically, the supervisor stated that the Letter of Warning identified fifteen days of unscheduled leave, and one incident of reporting to work late. The supervisor stated that after receiving the Letter of Warning, Complainant left work and has not yet returned to the Wenatchee Post Office.
Further, the supervisor stated that management relied on the following sections of the Employee Labor and Relations Manual (ELM) in issuing Complainant the Letter of Warning: Sections 511.4 "Unscheduled Absences;" 511.42 "Management Responsibilities;" 511.43 "Employee Responsibilities;" and 665.41 "Requirement of Regular Attendance."
The supervisor stated that on October 25, 2011, management sent a letter to Complainant requesting medical documentation. Complainant did not respond. The supervisor further stated that on October 31, 2011, a second letter was sent to Complainant, instructing her to contact the Supervisor Customer Services no later than November 3, 2011, concerning her absences. The supervisor stated that the second letter also references that management's several attempts to contact Complainant by telephone, which were unsuccessful. The supervisor stated that Complainant again did not respond to the letter.
The supervisor stated that on November 17, 2011, management sent a third letter to Complainant concerning her absences since September 23, 2011, and her failure to provide requested medical documentation. The supervisor stated that the third letter was "the first letter that explained that the failure to provide the medical documentation may result in the absences being charged to AWOL." The supervisor stated that on December 1, 2011, a fourth and final letter was sent to Complainant placing her on notice that "her absences had been charged to AWOL due to her failure to provide the requested medical documentation."
The supervisor stated that on December 22, 2011, he issued Complainant a Notice of Removal for Failure to be Regular in Attendance. In the Notice of Removal, the supervisor placed Complainant on notice that based on her failure "to provide acceptable medical documentation for your extended absence and your refusal to do so, I am left to conclude your removal from the Postal Service is the appropriate corrective measure." The supervisor stated that Complainant was in violation of the following sections of the ELM: Sections 511.43 "Employee Responsibilities;" 513.33 "Request for Sick Leave; 513.36 "Sick Leave Documentation Requirements;" 513.64 "Absence Without Leave;" 665.41 "Requirement of Regular Attendance;" and 665.42 "Absence Without Permission."
The supervisor stated that he also took into consideration Complainant's September 22, 2011 Letter of Warning for Failure to be Regular in Attendance, concerning her removal from Agency employment.
The supervisor stated that as a result of Complainant's grievance settlement, the above referenced Notice of Removal was later reduced to a fourteen-day suspension. Finally, the supervisor stated "I have never harassed or caused a hostile working environment against [Complainant]. All of the actions that I have taken in regard to her were in an attempt to correct her irregular attendance."
The supervisor stated that he later sent Complainant a letter requiring her to report for an investigative interview "on her failure to come to work as scheduled so that I could hear her side of the situation. She was scheduled to work on January 21, 2012 pursuant to a settlement at Step 2 concerning her Notice of Removal. She did not report to work and I sent her a letter on February 2, 2012, so that I could ascertain the reasons for her failure to come to work as scheduled."
With respect to Complainant's allegation that she was issued a letter of demand for health premium benefits, the supervisor stated that he had no knowledge of it. Specifically, the supervisor stated "I have not sent any letters of demand to any of my employees for any reason including health insurance programs."
Regarding Complainant's allegation that management assigned her duties to others in an effort to minimize the work hours assigned to her bid job, the supervisor denied it. The supervisor stated that he at no time assigned the duties of Complainant's bid job to other employees; and that to do so would be a violation of the clerk contract.
With respect to Complainant's allegation that she was not permitted to transfer to the maintenance craft, the supervisor stated that Complainant "was not the individual selected for the position due to the specific pecking order used for selection to the maintenance craft from another craft. I was not the selecting official for the custodial job that [Complainant] wanted."
The Postmaster stated that she was the concurring official concerning Complainant's Notice of Removal because Complainant's attendance "had been very irregular." The Postmaster further stated that there was no pre-disciplinary interview because Complainant would not come in for an interview. The Postmaster stated that in September 2011, Complainant called her and stated that "her medication was being adjusted, and then she would be able to come to work. She did not say what condition this medication was for and I don't know. She requested a leave of absence, which I granted her. She was supposed to report to work after three weeks, but she failed to do so."
The Postmaster stated that in November 2011, she received a letter from Complainant alleging that her supervisor subjected her to harassment. The Postmaster stated that she then asked the Supervisor Customer Service to speak with Complainant about her concerns and set up an investigative interview. The Postmaster stated that Complainant sent the Supervisor Customer Services indicating "she was 'excused from work,' but nothing further. I had letters to Complainant that have been provided to the investigation, which I wrote to try to clarify what was going on with Complainant. I relied on the ELM as cited in my letters."
Further, the Postmaster stated that Complainant received the letter of demand for health premium benefits "because she had been in a nonpaid status for so long that her health benefits were no longer in force. I received documentation from [named location], and I drafted the letter of demand as her postmaster, to give her the opportunity to pay the premium and keep her health benefits in effect." The Postmaster stated that Complainant responded to her letter.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, sex, color, and prior protected activity.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3
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
February 15, 2013
__________________
Date
1 For ease of reference, we have re-numbered Complainant's claims as claims 1 - 8.
2 The record reflects that claims 3 - 8 were later amended to the instant complaint.
3 On appeal, Complainant does not challenge the December 30, 2011, May 31, 2012, and June 5, 2012 partial dismissals issued by the Agency regarding four other amended claims (that she was discriminated against on the bases of race, sex, color, and in reprisal for prior EEO when on July 28, 2011, she was given a discussion; on unspecified dates, she was forced to sign her 3971s during stand up talks on sick leave; on November 17, 2011, she was asked to provide medical documentation in support of her absence since September 23, 2011; and on November 17, 2011, she was asked to report for an investigative interview on November 25, 2011). Therefore, we have not addressed these issues in our decision.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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