0120131887
08-05-2013
Sandra D'Alleva, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Sandra D'Alleva,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120131887
Agency No. 4B-110-0098-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 18, 2013 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 City Carrier at the Agency's Flushing-Bayside Carrier Annex in Bayside, New York.
On August 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. she was placed in Emergency Off-Duty Status from May 8, 2012 to May 11, 2012;
2. she was not compensated for leave she requested from May 12, 2012 to May 14, 2012; and
3. she was issued a Notice of Seven (7) Day (No Time Off) Suspension dated May 31, 2012 for Failure to Follow Instructions/Conduct Unbecoming of a Postal Employee.
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 March 18, 2013, 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, color and age discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of race, sex, color, and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the Manager Customer Services (Manager) stated that he placed Complainant on Emergency Off-Duty Status from May 8, 2012 to May 11, 2012 because he felt Complainant may be "injurious to herself or others." Specifically, the Manager stated that on May 8, 2012, Complainant was observed having strapped out all of her mail even though the "all up" bell had not yet been called. The Manager stated at that time Complainant was paged over the intercom several times but she did not respond. The Manager stated that a supervisor and union steward found Complainant in the parking lot loading her vehicle, and the supervisor "instructed her to return to the facility and she refused. After a while she came into the facility and I instructed her to report to my office with her Union Rep, and she refused. I instructed her a couple of more times, and each time she became more boisterous, saying 'I don't have to do anything I don't want to.' At that point I informed her that if she refused to follow my instructions I would have no choice but to tell her to leave the facility. She said that she didn't care."
The Manager stated that Complainant was in violation of the following Sections of the Employee and Labor Relations Manual: 665.11 "Loyalty," 665.13 "Discharge of Duties," 665.15 "Obedience to Orders," and 665.16 "Behavior and Personal Habits." Furthermore, the Manager stated that he did not discriminate against Complainant based on her race, sex, color and age.
Regarding claim 2, the record reflects that Complainant was informed that she should report back to work on May 11, 2012, following her Emergency Off-Duty Status, Complainant's leave slips showed her as having been Absent Without Leave from May 11, 2012 through May 14, 2012. The record further reflects that Complainant did not return to work until May 15, 2012. Consequently, Complainant was not paid because she was not at work on March 12, 13 or 14, 2012, and she did not have approved leave.
The Manager stated that Complainant was not compensated for leave she requested from May 12, 2012 to May 14, 2012 because she "did not provide administratively acceptable documentation to substantiate her absence."
Regarding claim 3, the Supervisor Customer Service (Supervisor) stated that on May 31, 2012, he issued Complainant 7-Day Suspension for Failure to Follow Instructions/Conduct Unbecoming of a Postal Employee. Specifically, the Supervisor stated that Complainant "was told on multiple occasions not to pull down her route before the "all up" bell. At one point when she pulled down her route, [a named former Postmaster] spoke to the entire Bayside manage staff about her pulling down her route. At that time she was not authorized to leave the building. She had pulled down her route and she was loading her car. We had several other instances where we would speak to her with her shop steward but these incidents would continue. After speaking to her multiple times, she still continued to ignore her instructions."
The Supervisor stated that on May 16, 2012, he conducted a Pre-Disciplinary Interview with Complainant and her union steward concerning Complainant's actions on May 8, 2012. The Supervisor stated that during the interview, Complainant acknowledged that she was instructed on numerous occasions not to begin strapping out of her route prior to the "all up" bell. Specifically, Complainant "said that I called the all up when I feel like it. She also complained about pivoting." The record reflects in the May 31, 2012 Notice of 7-Day Suspension, the Supervisor stated "it is clear that based upon your attitude and your responses to my questions that you refuse to follow management's instructions with regards to this issue."
Further, the Supervisor stated that Complainant was in violation of the following Sections of the Employee and Labor Relations Manual: 665.11 "Loyalty," 665.15 "Obedience to Others," and 665.16 "Behavior and Personal Habits." The Supervisor stated that he also considered Complainant's prior Letter of Warning dated January 24, 2012 before issuing her the 7-Day Suspension.
Complainant, on appeal, argued that the Agency improperly found no discrimination. For instance, Complainant stated that the Agency "has changed the story around + my words."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
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 pretextual.
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.
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 5, 2013
__________________
Date
2
0120131887
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131887
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