0120130906
05-16-2013
Ratree Knox, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Ratree Knox,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120130906
Agency No. 4J-481-0065-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 4, 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. 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 Sales and Service Distribution Associate at the Agency's Plymouth, Michigan Post Office.
On May 10, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), age (over 40), and in reprisal for prior protected activity when:
1. on February 16, 2012, she was issued a Notice of Removal for Attendance, dated February 10, 2012; and
2. on unspecified dates, she was only allowed to take one break.
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 December 4, 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, age and reprisal discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of race, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the Supervisor Customer Services, also Complainant's immediate supervisor, was the deciding official to issue Complainant a Notice of Removal for Failure to Adhere to Attendance Regulations. The record contains a copy of the February 10, 2012. Therein, the supervisor placed Complainant on notice that she would be removed from Agency employment on March 16, 2012, because she "failed to meet the attendance requirements of your position as a result of your lack of availability and your undependability in reporting for duty as scheduled."
The record further reflects that Complainant was absent and on unscheduled leave on the following dates: January 24, 2012 (6 hours), January 25, 2012 (6 hours), and January 28, 2012 (.69 hours). Complainant was also absent from her assignment without official authorization (Absent Without Leave AWOL)) on the following dates: January 16, 2012 (6 hours) and January 23, 2012 (6 hours).
The supervisor stated that during the February 2, 2012 investigative interview, Complainant answered "no comment" to every question she asked her. The supervisor determined that Complainant "failed to provide an administratively acceptable reason for your absences." Furthermore, the supervisor stated that Complainant was in violation of the following sections: 364.41 "Absence Without Leave," 511.41 "Definition of Unscheduled Absence," 511.43 "Employee Responsibilities," 513.365 "Failure to Furnish Required Documentation," 665.41 "Requirement of Regular Attendance," 665.42 "Absence without Permission," and 665.43 "Tardiness" of the Employee and Labor Relations Manual.
The supervisor also stated that she took the following elements of Complainant's past record into consideration before issuing her the Notice of Removal: 14-Day Suspension dated November 3, 2010, 14-Day Suspension dated October 11, 2011, and 5-Day Suspension dated July 6, 2011 concerning attendance issues. The supervisor stated that during the relevant period, she was not aware of Complainant's prior protected activity. Moreover, the supervisor stated that Complainant's race, age and prior protected activity were not factors in her determination to issue her the Notice of Removal.
The Postmaster was the concurring official concerning Complainant's removal. The Postmaster stated "I reviewed and concurred with the request for action submitted to our Labor department and concurred with the issuing the action to the Complainant." The Postmaster further stated that during the relevant period, Complainant "had irregular attendance. She had several suspensions for attendance in her file. She had more attendance infractions just before the issuance of the Removal." Furthermore, the Postmaster stated that he did not discriminate against Complainant based on her race, age, and prior protected activity.
Regarding claim 2, the supervisor stated that employees that work fewer than 8 hours are permitted one break and that all employees are treated equally in this regard. Specifically, the supervisor stated that because Complainant's schedule was 6 hours per day, 5 times a week, she was only allowed one break.
The Postmaster stated that Complainant's work schedule "was 6 hours per day with no lunch, 5 days a week. The National contract between APWU and the USPS provides 2 breaks for an 8 hour day of work. It does not state two breaks are afforded for a 6 hour work day."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 do not need to address Complainant's prima facie case as we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions, as detailed below.
After careful review of the record, we conclude that 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.
CONCLUSION
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.1
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
May 16, 2013
__________________
Date
1 On appeal, Complainant does not challenge the June 14, 2012 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of race, age and in prior EEO activity when, on an unspecified date in 2005, she was not provided work by management). Therefore, we have not addressed this issue in our decision.
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0120130906
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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