0120081813
08-14-2008
Anita M. Hatcher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita M. Hatcher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081813
Hearing No. 440-2007-00292X
Agency No. 1J-602-0015-07
DECISION
On March 6, 2008, complainant filed an appeal from a final agency decision
(FAD) dated January 31, 2008, 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a mail handler at the Palatine Processing and Distribution Center in
Palatine, Illinois.
On April 4, 2007, complainant filed an EEO complaint alleging, in relevant
part, that she was discriminated against on the basis of reprisal for
prior protected EEO activity when:
1. she was issued a notice dated December 27, 2006, of a 14 day
suspension,
2. management failed to follow procedure when it did not call a threat
assessment team regarding a May 17, 2007, incident, and
3. on June 14, 2007, the Manager of Distribution Operations (MDO) yelled
and screamed at her and said he was appalled by an incident report she
filed about his lack of investigation regarding a co-worker's threats
on May 17, 2007.
At the conclusion of the investigation of the above claims, complainant
was provided 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 the AJ denied the hearing request on
the grounds that she did not file pre-hearing submissions, as ordered.
The AJ remanded the complaint to the agency, and the agency issued a FAD
pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that complainant
failed to prove that she was subjected to discrimination as alleged, and
that claims 2 and 3 failed to state a claim because she was not harmed.
On appeal, complainant argues that the agency has continued to retaliate,
and this demonstrates she was subjected to discrimination. In opposition
to the appeal, the agency supports its FAD.
The suspension charged complainant with failure to maintain a regular
schedule, citing 10 absences she took leave without pay. Most or all the
leave was unscheduled. Complainant requested Family and Medical Leave
Act (FMLA) leave for all but three of the 10 of the cited absences.
She contended that she was discriminated against because the agency
should have approved her FMLA leave request, and was late in notifying
her of the denial.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
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). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. 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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); 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. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Regarding the suspension claim, the agency FMLA Coordinator explained
that the FMLA Certification of Health Care Provider (WH-380) form
complainant submitted was incomplete, and despite requests to submit a
completed one, complainant failed to do so. Accordingly, FMLA coverage
was denied. Report of Investigation (ROI), Affid. E, pages 1, 2.
Complainant claims this explanation is pretext to mask discrimination.
She contends that the form was complete. Complainant has failed to prove
pretext or discrimination. The agency notification letter to complainant
reciting gaps in the form and requesting it be completed, together with
the affidavit of the FMLA Coordinator that the form was incomplete,
persuasively show the agency believed it was incomplete. ROI, Affid. E,
pages 2, 34, 35. After the time expired for complainant to resubmit
a complete form, the agency disapproved FMLA coverage for the charged
FMLA leave requests. ROI, Affid. E, page 35, Affid. A, pages 26 - 39.
As complainant failed to maintain a regular schedule, she was suspended.
ROI, Affid. C, pages 1, 2, 3. We now turn to claims 2 and 3.
As an initial matter we note that the Commission will not consider
the agency's procedural dismissal of claims 2 and 3. As noted above,
the agency initially accepted and investigated these claims, but
the FAD concluded that complainant failed to state a claim. We shall
simply consider the merits of these claims based on the instant record.
On May 17, 2007, complainant had a confrontation with co-worker 1, which
was witnessed by co-workers 2, 3 and 4. The confrontation regarded
who was helping employees out more with bids, the complainant and her
group or the union. According to complainant, at one point during the
confrontation co-worker 1 threatened her by saying "your and your group
are going to get it."
The MDO, who was not in complainant's chain of command, with the
assistance of the union, promptly gathered witness statements.
Co-workers 1, 2, and 3 denied that a threat occurred, or hearing
a threat. Co-worker 4 did not comment on a threat, but indicated that
after co-worker 1 tried to end the argument, complainant tried to carry
it on. ROI, Affid. G, pages 10 - 13 (statements).
After the MDO presented his conclusion to complainant that no threat of
violence was made and there was no implication of a current danger or
threat of violence, she filed an incident report against the manager
for conducting a bad investigation and not calling in the threat
assessment team. She asked that the MDO be investigated by inspectors
and punished.
Thereafter, the MDO met with complainant and told her he was appalled
by the incident report. The MDO and a witness to the above meeting
denied that the MDO yelled. ROI, Affid. F, pages 3, 4; Affid. G,
page 1. During the EEO investigation, he recounted the above aspects
of complainant's incident and said that he believed his character had
been defamed. Complainant asserted this reaction was reprisal for her
representing employees in other EEO matters. ROI, Affid. A, pages 19,
20.
We find no discrimination regarding claims 2 and 3. First, no action
occurred that was adverse or would likely deter EEO activity. Second,
as the MDO conducted the threat assessment, he fairly concluded there
was no need to call in the threat assessment team, and his expression
of frustration without yelling does not indicate reprisal.
As complainant failed to prove discrimination, the FAD 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
August 14, 2008
__________________
Date
2
0120081813
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081813