0120170608
07-06-2017
Alma F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alma F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120170608
Hearing No. 480-2014-00008X
Agency No. 4F-900-005413
DECISION
On December 3, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 7, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to discrimination based on her national origin and sex.
ISSUE PRESENTED
The issue presented in this case is whether the Agency correctly found that Complainant did not demonstrate that she was subjected to discrimination with regard to the processing of her Continuation of Pay (COP) claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full time, Carrier Technician at the Agency's Santa Monica Post Office in Santa Monica, California. On March 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic)2 and sex (female) when: following Complainant's on the job injury occurring on October 19, 2012, management denied her COP claim by not processing her leave properly.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that management purposely failed to process her COP claim in a timely manner. She indicated that approximately nine months after she submitted the paperwork, she was still owed 168 hours of COP, thus she maintains her COP claim had never been processed. Complainant explains that she injured her back after she was instructed by her supervisor to lift a heavy package. She indicated that following the injury to her back she stayed on the job but thereafter she experienced increasing back problems and submitted paperwork for continuation of pay and Office of Workers Compensation (OWCP) benefits. Complainant indicated that she believed that she was subjected to discrimination because her supervisor knew her national origin and sex when he assigned her to lift the heavy package.3
In response, the Agency maintains that Complainant has provided no evidence which indicates that the problems with the processing of her COP claim had anything to do with her sex or national origin. Management explained that the delay in processing the COP claim had several causes, i.e., confusion because Complainant had two supervisors during the time-period; the fact that she initially continued to work after her injury so the correct time frame for beginning of her COP claim was not clear; and because OWCP was involved. Management also explained that Complainant was paid COP for 80 hours instead of the required 45 hours due to the mix up.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, among other things, Complainant's COP was not promptly processed due to confusion because she had two supervisors during the time-period; the fact that she initially continued to work after her injury so the correct time frame for beginning of her COP claim was not clear; and because OWCP was involved. More importantly, Complainant has not provided any persuasive evidence indicating that the delay in processing of her claim was due to her national origin or sex. Moreover, the Agency maintained that Complainant was eventually paid the appropriate amount. We find that Complainant did not provide any evidence which suggests that the Agency's reasons were pretext for discrimination.
Moreover, with regard to Complainant's contentions on appeal, we find that other than her conclusory statements she did not provided any evidence which suggests that her national origin or sex were considered with regard to the processing of her paperwork. We find that Complainant has not proven that she was subjected to discrimination as she alleged. We note that Complainant and management often provided conflicting testimony about the incidents at issue. Had Complainant not withdrawn her request for a hearing before an AJ, the AJ could have made credibility determinations based on witness testimony. See generally EEO MD-110, Ch. 7 (explaining the hearing stage and the role of the AJ). As such, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
CONCLUSION
Accordingly, the Agency's FAD which found no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___7/6/17_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant listed her race as Hispanic. The Commission recognizes the term, "Hispanic" to be a description of national origin, not race, however.
3 Complainant initially attempted to amend her complaint to include this claim but both the Agency and the EEOC Administrative Judge, prior to Complainant's withdrawal of her hearing request, found that the claim was untimely. Complainant does not challenge this determination on appeal.
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