0120103212
08-31-2012
Tammy L. Mills, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Tammy L. Mills,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120103212
Hearing No. 471-2009-00095X
Agency Nos. 4J-480-0109-08 & 4J-480-0057-09
DECISION
On July 22, 2010, Complainant filed an appeal from the Agency's June 17, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's post office in Birch Run, Michigan. On December 17, 2008, Complainant filed an EEO complaint (Agency No. 4J-480-0109-08) wherein she claimed that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she was subjected to a hostile work environment as follows:
1. On August 13, 2008, Complainant's request for annual leave in December 2008 was disapproved.
2. On August 30, 2008, Complainant was not properly paid when she scanned the collection boxes.
3. On September 5, 2008, Complainant received a pre-disciplinary interview and was subsequently issued a Letter of Warning on September 20, 2008.
4. On October 15, 2008, Complainant received a pre-disciplinary interview and subsequently a seven day suspension on November 17, 2008.
5. On November 22, 2008, Complainant was not properly paid.
6. On December 18, 2008, December 19, 2008, and January 6, 2009, Complainant was not paid mileage for long life vehicle training.
7. Since on or about February 28, 2008, Complainant has been forced to work up to twelve hours a day every time she works.
On July 1, 2009, Complainant filed another formal EEO complaint (Agency No. 4J-480-0057-09) wherein she claimed that she was subjected to additional retaliation:
8. Ongoing since approximately February 2009, Complainant was continually forced to work beyond the daily evaluated hours.
9. Complainant claimed she was not properly paid when she was overpaid for Equipment Maintenance Allowance on March 7, 2009 when she used a long life vehicle, but was not paid on April 15, 2009, when she was pulled from her route for a meeting with the Postmaster.
10. On April 23, 2009, Complainant was put on emergency placement in an off-duty status.
11. On May 4, 2009, Complainant received a pre-disciplinary interview and was subsequently issued a Notice of Removal dated May 26, 2009.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request and requested a final agency decision. The AJ consolidated the complaints and remanded the complaints to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
With respect to claim (1), on August 12, 2008, Complainant requested leave from December 5-15, 2008. Final Agency Decision at 12. The Postmaster disapproved the request noting that it was too soon to determine whether Complainant's services would be needed. Id. The Agency stated that Complainant, on November 18, 2008, submitted a leave request for the same time period and that this leave request was approved. Id. According to the Agency, Complainant was an employee in a non-leave earning capacity and therefore when she requested leave, the Postmaster had to disapprove the request because she could not grant it until the period in question drew closer as a leave earning employee might request that time as well. Id. at 27. The Agency stated that Complainant was subsequently granted the requested time off. Id.
With respect to claim (2), the Agency stated that Complainant was not paid on August 30, 2008, because she failed to complete a 1314A with the times and mileage she worked that day. Id. According to the Postmaster, she did not realize this error until after she had submitted the timecards for pay period 19. Id. The Postmaster stated that on September 20, 2008, she requested that Complainant complete the 1314A for August 30, 2008, and informed Complainant that she would receive the pay during her next pay period. Id. The Agency determined that Complainant was subsequently paid. Id.
With respect to claim (3), the Agency stated that Complainant was disciplined because she failed to follow a direct order. Id. at 28. The record indicates that Complainant received a pre-disciplinary interview on September 5, 2008. Id. Complainant subsequently received a Letter of Warning for failure to follow instructions. Id. The Letter of Warning specified that Route 7 had to be split among the rural carriers and Complainant had been instructed to help carry Route 7 before beginning the regular delivery of her route. Id. Complainant allegedly stated that she had her own route to do first and she left the mail for Route 7 at the post office. Id. The Agency stated that Complainant was insubordinate when she failed to perform the requested work. Id. at 29. The Agency concluded that the discipline issued to Complainant was appropriate and consistent with its regulations. Id.
With regard to claim (4), the Agency stated that on October 4, 2008, Complainant was scheduled for Route 6. Id. Despite the fact that Complainant had been previously instructed not to curtail mail without authorization, Complainant failed to case a tub of flats containing both periodicals and standard mail without authorization. Id. As a result, Complainant received a pre-disciplinary interview and a seven day suspension for failure to follow instructions and discharge of duties. Id. Complainant acknowledged that she left some flats, but she believed the discipline was too harsh because she only left a small tub of flats. Id. at 13.
As for claim (5), Complainant stated that on November 22, 2008, she was required to deliver Route 5 despite the fact that she was unfamiliar with the case and streets for that route. Id. at 14. According to Complainant, she worked from 6:30 a.m. to 5:40 p.m. yet she was only paid for 8.18 hours. Id. The Agency stated that the Postmaster informed Complainant she should have been paid for her actual hours worked on the Route. Id. at 31. A leave adjustment request was subsequently submitted by the Postmaster, but it was on the wrong form and was returned. Id. The Agency stated that Complainant was subsequently paid via a grievance settlement for the hours worked on November 22, 2008, and she also received extra pay for training on Route 5. Id.
With regard to claim (6), Complainant stated that a coworker had been paid for her mileage in December for the long life vehicle training. Id. at 25. According to the Agency, four employees attended long life vehicle training and all mileage for each of the employees was submitted on the same date and paid on the same date. Id. at 33. The Postmaster explained that she sent Complainant a letter concerning her request to be paid mileage and that she informed Complainant the mileage had to be submitted through eTravel and that she would receive a separate check. Id. at 32. The Agency determined that Complainant was subsequently paid for her mileage. Id. at 33.
In terms of claims (7) and (8), the Agency stated that Complainant failed to identify any individuals who were treated differently. Id. at 25. Complainant claimed that every time she worked, she worked up to twelve hours without additional pay. Id. The Postmaster stated that Complainant worked in a position that was on an evaluated pay scale. Id. at 33. According to the Postmaster, Complainant was not required to work twelve hours each time she was scheduled, but she was expected to perform her full job duties each time she was scheduled, and that could require her to perform longer hours up to twelve hours a day. Id. The Agency stated that Route 5 was evaluated at 8.18 hours and Route 6 was evaluated at seven hours. Id. The Agency stated that if Complainant finished Route 5 in any amount of time under 8.18 hours, she would still be paid for 8.18 hours. Id. The Agency further explained that when Complainant went over the evaluation scale up to twelve hours, she still received pay for 8.18 hours. Id. According to the Agency, the pay scale is the same for all the employees in Complainant's job classification. Id. The Postmaster stated that the daily hours worked were determined by the volume of mail received and the individual carrier's proficiency. Id. at 34.
With respect to claim (9), the Postmaster stated that due to being new in her position, she committed mistakes on Complainant's pay as well as that of other employees. Id. at 37. Among these mistakes were paying Complainant's mileage in one instance, not paying Complainant for a full day and also not paying her for ten minutes of a service talk. Id. The Postmaster stated that she listed the regular carrier's name rather than Complainant with regard to the one day of pay. Id. As for the ten minutes service talk, she stated that she placed Complainant's time in hours and minutes rather than hours and hundredths. Id. The Agency concluded that the necessary adjustments were made to correct these administrative errors. Id.
As for claim (10), the Agency explained that Complainant was put in emergency placement status because she refused a direct order to put up all the mail and carry the complete route up to twelve hours. Id. Complainant left work that day and left behind two tubs with letters, flats and spurs on the floor under the flat coffin, flats in the coffin and good mail in the missents. Id. at 38. According to the Postmaster, she requested that Complainant hand over her badge and keys, but Complainant refused. Id.
With respect to claim (11), the Postmaster stated that she issued Complainant the Notice of Removal for failure to follow instructions and insubordination. Id. The Agency noted that Complainant consistently failed to follow the instructions and direct orders of her supervisor. Id. at 39. The Agency stated that Complainant continued to curtail mail even after being disciplined previously for the same infraction. Id. Additionally, the Agency referenced the fact that Complainant had been disciplined twice previously for failing to follow her supervisor's instructions. Id.
As to the arguments set forth by Complainant to establish pretext, Complainant stated she never improperly handled, delayed, or lost mail. Id. at 40. However, the Agency found that Complainant's position is inconsistent with her own statement and the statement provided by her coworker. Id. In support of its assertion, the Agency stated that Complainant acknowledged that she left some flats in a tub on October 4, 2008. Id. Further, a coworker stated that Complainant left curtailed mail on seven occasions. Id. The Agency stated that Complainant refused to carry part of Route 7 on August 30, 2008, and on April 23, 2009, Complainant placed mail with good addresses in the missents. Id. Additionally, the Agency noted that Complainant frequently used excessive time in comparison with the regular carriers to carry her routes. Id. The Agency determined that Complainant failed to establish that its reasons for its actions were pretext. Id. at 41.
With respect to Complainant's claim of a hostile work environment, the Agency determined that the alleged conduct did not rise to the level of a hostile work environment as it was not severe and occurred over a relatively short period of time. Id. at 44-45. The Agency noted that four of the alleged incidents involved a delay in receiving pay, but the record indicates that Complainant was subsequently paid. Id. at 44. The Agency stated that three of the incidents involved issuance of discipline that was consistent with its rules, regulations and policies. Id. Additionally, the Agency stated that two of the incidents involved a requirement by Complainant to work in accordance with the collective bargaining agreement. Id. The Agency further asserts that there is no basis for imputing liability to the Agency. Id. at 45. The Postmaster stated that Complainant never told her that she believed she was being harassed. Id. The Agency stated that its management officials were provided training on harassment and the appropriate harassment policies were posted in several locations within the Birch Run facility. Id.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's 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 (Mar. 8, 1994).
With regard to each claim discussed below, we shall assume arguendo that Complainant set forth a prima facie case of reprisal. In terms of claim (1), the Agency explained that the Postmaster disapproved Complainant's leave request noting that it was too soon to determine whether Complainant's services would be needed. We find that this was a legitimate, non-discriminatory explanation. Complainant has offered no persuasive argument or evidence to establish pretext. Moreover, we note that Complainant was granted the time off as the relevant time period drew nearer.
In terms of claim (2), the Agency presented a legitimate, nondiscriminatory reason for not paying Complainant on August 30, 2008, as Complainant failed to complete a 1314A with the times and mileage she worked that day. Complainant has not shown that her non-payment was attributable to retaliatory intent. In fact, the record reflects that Complainant was subsequently paid once the Postmaster became aware of the mistake.
The Agency stated as to claim (3) that Complainant failed to follow a direct order when her assistance was needed on Route 7. With regard to claim (4), the Agency explained that Complainant failed to case a tub of flats despite the fact that she had been instructed not to curtail mail without authorization. We find that the Agency articulated legitimate, nondiscriminatory reasons for the pre-disciplinary interviews that took place in each of the respective matters as well as the Letter of Warning and the seven day suspension, respectively. Complainant argued that the Letter of Warning was unnecessary and that the seven day suspension was too harsh in light of the fact that she failed to case a small tub of flats. We find these arguments are not persuasive as Complainant clearly failed to follow direct orders that were reasonable and non-retaliatory. Thus, the Agency's determination that no reprisal occurred as to claims (3-4) was proper.
With regard to claim (5), the Agency acknowledged that Complainant should have been paid for the actual hours she worked on Route 5. The Agency erred when the leave adjustment request subsequently submitted by the Postmaster was on the wrong form and was returned. However, there is no indication that the Agency's handling of this matter was retaliatory in nature and the record establishes that Complainant was subsequently paid pursuant to a grievance settlement.
As for claim (6), the Postmaster explained that she sent Complainant a letter concerning her request to be paid for long life vehicle mileage and that she informed Complainant the mileage had to be submitted through eTravel and that she would receive a separate check. This constitutes a legitimate, nondiscriminatory explanation for Complainant not being paid on the dates at issue. Complainant has not shown this reason was pretext and in fact Complainant subsequently received payment for her long life vehicle mileage.
With respect to claims (7-8), we find that the Agency presented a legitimate, nondiscriminatory reason for its position based on Complainant being in an evaluated pay system where she could be expected to work up to twelve hours per day without going into overtime. According to Complainant, she should have been allowed to curtail mail on some days, but instead was forced to work overtime without the pay. Complainant stated that she was hired to be a substitute on Route 6 but she frequently had to work on Route 5, a route with which she was unfamiliar. We find that the arguments submitted by Complainant are not sufficient to refute the Agency's position that Complainant was properly assigned work hours up to twelve hours a day pursuant to her evaluated pay position. Therefore, we find that no reprisal discrimination occurred with regard to claims (7-8).
With respect to claim (9), we find that the Agency articulated a legitimate, nondiscriminatory explanation for errors in Complainant's pay. The Postmaster stated that she listed the regular carrier's name rather than Complainant with regard to the one day of pay. Id. As for the ten minutes service talk, she stated that she placed Complainant's time in hours and minutes rather than hours and hundredths. The record indicates that the Postmaster's errors were attributable to her being new in the position rather than retaliatory intent.
With respect to claim (10), the letter placing Complainant in an off-duty status specified that based on Complainant's behavior and conduct, there was reason to believe that retaining Complainant on duty might result in improper handling and/or loss of mail. We find that the Agency articulated a legitimate, nondiscriminatory reason for deciding to put Complainant in an emergency placement off-duty status. Complainant claimed that she never improperly handled, delayed or lost mail. We find that this argument is inconsistent with her admissions to the contrary and fails to refute the Agency's explanation for putting her in an emergency placement off-duty status.
With regard to claim (11), according to the Agency, Complainant received a pre-disciplinary interview and was subsequently issued a Notice of Removal based on Conduct Unbecoming a Postal Employee/Failure to Follow Instructions. The Notice stated that on April 23, 2009, Complainant was scheduled to work on Rural Route 5, which was evaluated at 8.18 hours. As referenced in claim (10), Complainant was given a direct order to case up all the mail and carry the route up to twelve hours, but she refused to do so. The Agency also referenced Complainant's past disciplinary record of the seven day suspension and the Letter of Warning.
We find that the Agency presented legitimate, nondiscriminatory reasons for holding the pre-disciplinary interview and issuing the Notice of Removal. Complainant maintains that she never improperly handled, delayed, or lost mail. However, the record indicates otherwise. Complainant acknowledged that she left some flats in a tub, and statements from a coworker that Complainant curtailed mail on several occasions contradict Complainant's contention that she was a reliable employee. Further, Complainant frequently took an excessive amount of time to deliver the mail on her routes in comparison with the time that it took the respective regular carriers to deliver those routes. We find that Complainant has failed to establish that the reasons presented by the Agency for the Notice of Removal were pretext intended to hide retaliatory intent. In light of our finding that reprisal was not a motivating factor in any of the alleged actions, we find that the record also does not support Complainant's claim of retaliatory harassment.
CONCLUSION
The Agency's final decision 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:
August 31, 2012
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant raised several other claims that were dismissed in three separate partial dismissals. Complainant has not challenged the dismissal of these claims, and therefore they will not be addressed further in this decision.
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0120103212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103212