Terry B. Dotson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
01a40291 (E.E.O.C. Mar. 18, 2005)

01a40291

03-18-2005

Terry B. Dotson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Terry B. Dotson v. United States Postal Service

01A40291 & 01A40292

March 18, 2005

.

Terry B. Dotson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01A40291

01A40292

Agency Nos. 4-B-018-0038-99

4-B-018-0086-00

Hearing Nos. 160-A1-8008X

160-A3-8330X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final order in the above-entitled matter.

On May 6, 1999, complainant filed the first captioned complaint,

claiming discrimination on the bases of sex (female), age (over 40),

and in reprisal for prior EEO activity when from November 30, 1998

through January 12, 1999:

(1) Complainant was not permitted to work her bid job in the �Reg room;�

Complainant was denied the opportunity to work overtime in her back-up

and primary bid assignments and general overtime;

Complainant was not permitted to work overtime while on Light Duty;

Complainant was restricted and disciplined in her job;

Complainant was threatened with discipline for working overtime without

prior approval;

Complainant was subjected to co-worker harassment;

Complainant was harassed by her supervisor in that he pages her and

follows her around;

Complainant's bid rights were violated while on overtime;

On November 5, 1999, complainant was issued a Notice of 14-day

Suspension, charging her with failure to follow instructions; and

Complainant's co-workers attempted to cause her physical harm concerning

equipment.

On December 13, 2000, complainant filed the second captioned complaint,

claiming discrimination on the bases of sex (female), religion

(Christian), age (over 40), and in reprisal for prior EEO activity,

when since July 17, 2000:

Complainant was not permitted to work her primary or back-up bid

assignments;

Complainant was denied the opportunity to work overtime in her primary

and back-up bid assignments; and

Complainant was subjected to harassment by male co-workers who used

foul language in her presence.

Both complaints were accepted for investigation, and forwarded to an EEOC

Administrative Judge (AJ) for a hearing. On July 9, 2003, in response to

the agency's �Motion to Dismiss Due to Complainant's Misrepresentation of

Facts to the Court,� the AJ issued a decision entitled �Complainant's

Noncompliance and Sanctions Dismissal.� Therein, the AJ granted

the agency's motion, finding that cancellation of the hearing was an

appropriate sanction under 29 C.F.R. � 1614.109(f)(3).

Specifically, the AJ found that complainant failed to participate in a

scheduled telephone conference 8:30 am on June 16, 2003, and failed to

notify the AJ or the agency of her unavailability. The AJ found that

the agency unsuccessfully attempted telephone contact with complainant

throughout the day. The AJ acknowledged that at the end of the day,

complainant telephoned her, apologizing for the missed conference call,

explaining that she injured herself at work and had been obtaining

medical treatment. The AJ indicated that she advised complainant that

she issued a Show Cause Order, and that complainant should respond to it.

The AJ found that on the next day, complainant sent a letter requesting

that the conference be re-scheduled. Complainant indicated that she

missed the call because earlier in the morning she twisted her left knee

at work and was in pain, and had to �get it fixed.�

The AJ indicated, however, that the agency's Motion challenged

complainant's statement. The agency provided copies of clock rings

indicating that complainant worked her regular 10:00pm to 6:30 am shift,

as well as two hours of over time, so that she was at work at 8:30 am on

June 16, 2003, and was available for the conference call. The agency

stated that complainant did not report a work-place injury during this

shift, but that she then called her supervisor on the night of June 16,

2003 to indicate that she would be taking three days of leave because of

a work-place injury. However, the agency stated that when she returned

to work, complainant informed her supervisor that she did not know how

she injured her knee.

The AJ found that complainant submitted two responses to the agency's

motion. In the first response, complainant indicated that she stayed at

work on overtime even though she was in pain, and waited for her daughter

(a co-worker) to follow her home. Also, the AJ found that complainant

indicated that she did not go to the emergency room at that time because

she did not want to awaken her physician to obtain authorization, or fill

out all the necessary papers, and did not desire to fill-out an Office

of Workers' Compensation Program claim. Regarding the second response,

the AJ found that complainant enclosed medical documentation showing

that she was examined for knee pain on the evening of June 16, 2003,

approximately 10 hours after the scheduled telephone conference.

The AJ found that complainant failed to present a credible reason for

failing to �pick up the telephone� and timely advise her, or the agency,

that she was unavailable. The AJ noted that complainant's medical

treatment occurred long after the conference time. The AJ found that

complainant intentionally gave the impression that she suffered an

injury that precluded her from either participating in the conference,

or timely informing the participants of her inability to participate, and

otherwise failed to show good cause why sanctions should not be imposed.

Therefore, the AJ cancelled the hearing as a sanction, and remanded

the case to the agency to issue a final decision on the merits of the

complaints.

The agency issued a decision on each complaint on September 18, 2003,

finding that the AJ properly sanctioned complainant. Furthermore, the

agency determined that complainant failed to establish a prima facie

case regarding any of her alleged bases of discrimination. However, the

agency also determined that even assuming that complainant established a

prima facie case on her alleged bases, the agency articulated legitimate,

non-discriminatory reasons, which it fully describes in each decision,

but that complainant failed to prove that these reasons were a pretext

for discrimination. In this regard, the agency found that complainant

failed to provide the investigator with an affidavit for both complaints.

As to complainant's harassment claims, the agency determined that many

of the incidents were not harassing in nature, and complainant submitted

insufficient evidence to show that these incidents occurred because of

her membership in a protected class, concluding that even when viewed

altogether, these incidents did not create a hostile work environment.

On appeal, complainant argues that because of her injury and pain, as

well as her stress associated with her need to report for active military

duty in just a short time with such an injury, she simply forgot about the

conference call. Complainant further asserts that the AJ did not leave a

telephone message when the agency attempted to initiate the conference

call, and denies that the agency called her at anytime on June 16,

2003, and submits a statement by her daughter verifying this contention.

Complainant requests that her hearing be re-scheduled.

Cancellation of the Hearing

An AJ has the authority to sanction either party for failure without good

cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3).

These sanctions must be tailored in each case to appropriately address the

underlying conduct of the party being sanctioned. A sanction may be used

to both deter the non-complying party from similar conduct in the future,

as well as to equitably remedy the opposing party. If a lesser sanction

would suffice to deter the conduct and to equitably remedy the opposing

party, an AJ may be abusing his or her discretion to impose a harsher

sanction. See Hale v. Department of Justice, EEOC Appeal No. 01A03341

(December 8, 2000).

The record confirms that complainant was on notice that her pre-hearing

telephone conference was scheduled for June 16, 2003, at 8:30am.

The record also confirms that at the time of the conference, complainant

was at work, just completing a two-hour overtime shift. Essentially,

complainant contends that she simply �forgot� about the conference.

However, based on the record before us, we find that this explanation

is not sufficient to justify complainant's failure to comply with the

AJ's order regarding the telephone conference. We also find that under

these circumstances cancellation of the hearing, with a remand to the

agency to issue a final decision on the merits of the complaints, is an

appropriate sanction in this case.

Agency's Merits Determinations

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She

must generally 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. See Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with in this case, however,

since the agency has articulated legitimate and nondiscriminatory

reasons for its conduct. See Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is a pretext for discrimination. See Reeves

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).

Here we find that each of the agency's final decisions details

management's legitimate, nondiscriminatory reasons for each of its actions

with regard to complainant's claims. We further find that these reasons

are supported by the record, and that complainant presents no evidence

of pretext. Accordingly, we concur with the agency that complainant

failed to prevail in her disparate treatment claims.

Furthermore, regarding complainant's harassment claims, under the

applicable legal standard, we concur with the agency that complainant

failed to demonstrate that she was subjected to a hostile work

environment. See Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final order,

because a preponderance of the record evidence does not establish that

discrimination occurred.

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

March 18, 2005

__________________

Date