0120081187
05-14-2008
Wilma R. Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilma R. Figueroa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081187
Agency No. 4G-780-0135-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 23, 2007 final decision concerning her
equal employment opportunity (EEO) complaint claiming unlawful 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a City Carrier,
CC-01, at the agency's Downtown Station in Waco, Texas.
The record reflects that on March 7, 2007, complainant requested overtime
but her supervisor (S1) denied her request. The supervisor stated that
complainant needed to complete her work within an eight-hour work period.
Complainant then informed S1 that she was tired of being harassed, and
that she was going home because she was not feeling well. The record
reflects that management requested that complainant provide medical
documentation to substantiate her incapacity to work but complainant did
not provide documentation for her absence. On March 7, 2007, complainant
worked 1.47 hours and requested sick leave for the remainder of the day.
The record reflects that an adjustment to complainant's time record was
made by charging her 4.62 hours to annual leave/Family Medical Leave Act
(FMLA). Beginning March 7, 2007, complainant requested two weeks off
for an entirely new medical condition, described by her physician as
"tearfulness, shakes, chest tightening directly related to acts by
supervisor that makes her feel threatened or harassed." The record
reflects that complainant was absent from work from March 7, 2007 through
April 11, 2007. Complainant claimed that she requested forty hours of
annual leave and twenty hours of Leave Without Pay (LWOP) by contacting
the Call Center and submitting FMLA certification papers. The record
reflects that complainant was put on notice that if she wanted to be paid
for any absence that was not related to her on-the-job injury, she was
expected to provide additional medical documentation for that specific
time off. Complainant failed to provide the requested documentation
and as a result, she was charged 64.75 hours of LWOP.
On May 17, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the bases of sex (female), disability (hands and shoulder), age (51)
and in reprisal for prior EEO activity when:
(1) beginning February 23, 2007, she had been harassed and retaliated
against regarding her absences; and
(2) on March 22, 2007, she became aware that she was charged 64.75 hours
of leave without pay.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
On November 23, 2007, the agency issued a final decision finding no
discrimination. The agency found that complainant did not establish
a prima facie case of age discrimination because complainant did not
demonstrate that similarly situated employees not in her protected
classes were treated favorably under similar circumstances. The agency
found that complainant did not establish a prima facie case of disability
discrimination because she did not show that she is an individual with
a disability; and that she did not submit any evidence showing that
her medical condition substantially limited any major life activity at
the time of the alleged discriminatory events.1 Regarding the basis of
reprisal, the agency found that complainant did not establish a prima
facie case of reprisal discrimination because she did not establish a
causal connection between her prior protected activity and the alleged
discriminatory events at issue.
The agency further found that assuming arguendo that complainant
established a prima facie case of sex, disability, age and reprisal
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions. The agency concluded that complainant failed to
prove, by a preponderance of the evidence, that the agency's articulated
reasons were pretext for discrimination.
Regarding complainant's harassment claim, the agency noted that
complainant did not provide any information in support of her claim.
The agency nevertheless found that complainant failed to prove she was
subjected to harassment sufficiently severe or pervasive so as to render
her work environment hostile.
Regarding claim (1), S1 denied complainant's claim that she was subjected
to harassment and retaliated against concerning her absences. S1 stated
"anytime I instruct her to do something she doesn't want to do. . .
she says I am harassing her." S1 stated that complainant wants to be
transferred to Florida and that he "would gladly like to accommodate
[complainant] but due to her poor sick leave record and poor street and
office performance and poor discipline record, no one office in Florida
will take her." S1 stated that he has repeatedly told complainant "if
she believes that I am violating the contract or her rights she needs
to file a complaint."
With respect to complainant's assertion that S1 told her he had read a
letter she sent to the District Manager, S1 denied complainant's claim.
S1 further stated "I know of the letter to the District Manager but I
do not remember reading it or what its contents are. More than likely
they are about false accusations of harassment and discrimination against
her."
The Supervisor Customer Services (SCS) stated that in July 2007,
complainant requested to have the mirrors and air conditioning repaired
in her van. SCS further stated that he denied complainant's request
because "there is not another Postal vehicle at this station that has
air conditioning, so to treat her the same I told her she did not need
air conditioning." SCS stated that during the relevant time, a mechanic
replaced the fuse for complainant's mirrors.
Regarding claim (2), S1 stated that on March 7, 2007, complainant
requested overtime but he "instructed her that she did not have any
time coming to her and she needed to complete her route in eight hours.
She stated to me that she was tired of the harassment and that she did
not feel well and she was going home." S1 stated that he instructed
complainant to provide medical documentation indicating that she was
incapacitated to perform her duties but she "has never provided that
documentation for that incident." S1 stated that complainant was out of
work from March 7, 2007 through April 11, 2007. S1 stated that during
the relevant time, complainant had surgery on her hand. S1 stated that
after his discussion with the Manager concerning complainant's absence,
he put her in for LWOP because she "failed to provide the required
documentation." S1 stated that complainant was in violation of Sections
511.43, 512.422, 513.332 and 515.523 of the Employee and Labor Relations
Manual Handbook (ELM). Furthermore, S1 stated that complainant's sex,
alleged disability, age or prior protected activity were not factors in
his determination to charge her with 64.75 hours of LWOP.
The record contains complainant's PS Form 3971 Request for or Notification
of Absence dated April 12, 2007. Therein, complainant requested 40
hours of LWOP from April 3, 2007 to April 7, 2007. The record reflects
that complainant's LWOP request was approved by the Injury Compensation
Office and attached to the form is a handwritten note stating "3971's on
file show LWOP/IOD requested in LWOP status. The file does not reflect a
CA-7 for compensation." The record also contains complainant's PF Form
3971 dated April 12, 2007. Complainant requested an unspecified number
of LWOP-IOD hours for the period of April 18, 2007 to April 24, 2007.
The record contains complainant's PS Form 3971, requesting an unspecified
number of annual leave hours from April 16, 2007 through April 21, 2007.
The form was signed by complainant on April 23, 2007, but contains no
management signature.
The record contains Sections 511.43 "Employee Responsibilities," Section
512.422 "Approval or Disapproval," Section 513.332 "Unexpected Illness
or Injury," and Section 515.523 "Employee Incapacitation" of the ELM.
Therein, Section 511.43 provides that "employees are expected to maintain
their assigned schedule and must make every effort to avoid unscheduled
absences. In addition, employees must provide acceptable evidence for
absences when required." Section 512.422 provides that "the supervisor
is responsible for approving or disapproving the request for annual leave
by signing PS Form 3971, a copy of which is given to the employee."
Section 513.332 provides that "an exception to the advance approval
requirement is made for unexpected illness or injuries; however, in
these situations the employee must notify appropriate postal authorities
of their illness or injury and expected duration of absence as soon
as possible." Section 515.523 provides that "an employee requesting
FMLA-covered time off because of his or her own incapacitation must
satisfy the documentation requirements for sick leave in 513.31 through
513.38 in order to receive paid leave during the absence."
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 Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its actions. Complainant has not shown
that the agency's articulated reasons, as discussed above, were a pretext
for discrimination.
The agency's final decision finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 14, 2008
__________________
Date
1 The Commission presumes, for purpose of analysis only and without so
finding, that complainant is an individual with a disability.
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0120081187
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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