0120090771
05-20-2009
Anna K. Harrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anna K. Harrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090771
Hearing No. 470-2008-00102X
Agency No. 1C-401-0059-07
DECISION
On November 13, 2008, complainant filed an appeal from the agency's
final decision, dated November 4, 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). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the relevant time, complainant worked as a manager in the
Airport Mail Facility (AMF) in Louisville, Kentucky. Complainant had
been on an extended period of sick leave (SL), using over 1,300 hours
of SL in 2007. For pay period (PP) 19, complainant was granted 8 hrs
of holiday pay, 28.39 hours of SL, and 43.61 hours of LWOP (for a total
of 80 hours). Complainant had exhausted his sick leave balance, but 600
hours remained in her annual leave (AL) account.
When complainant learned that she had been charged with LWOP, rather
than AL, during PP 19, she believed that the action was discriminatory
reprisal and contacted the EEO office. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on November 10,
2007, complainant filed a formal complaint. At the conclusion of the
investigation, 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 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 she was subjected to
discrimination as alleged.
The agency reasoned that complainant established a prima facie case of
discrimination, but the agency provided a legitimate, non-discriminatory
reason for its actions. The timekeeper attested that when complainant
ran out of SL, she checked with the Family Medical Leave Act (FMLA)
Coordinator to see if complainant had submitted a request to convert to AL
once SL was gone. The Coordinator stated that he had not received such a
notification and suggested that the timekeeper check with complainant's
manager. The manager also indicated that he had not received such a
request from complainant, and instructed the timekeeper to input LWOP.
The timekeeper explained that a change from SL to AL could not be executed
without complainant's permission.
In an effort to establish pretext, complainant argued that the change
from SL to AL was previously done for her under similar circumstances.
Further, she claimed that on August 23, 2007 she wrote to the FMLA
Coordinator and authorized him to use AL should she exhaust her SL.
The agency, however, found no evidence establishing that management
was aware of complainant's intentions to utilize AL once her SL was
used. Complainant's purported written notification was not received
until September 19, 2007, after the PP was closed. Consequently, when
time was entered into the system LWOP was recorded.1 According to the
agency, the record did not show the agency's reasons were pretext for
unlawful discrimination.
ANALYSIS AND FINDINGS
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). 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. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, the agency has presented legitimate,
non-discriminatory reasons for charging complainant with 43.61 hours
of LWOP. According to agency officials complainant had exhausted her SL
balance and had not authorized the agency to convert her request to AL.
Consequently, the timekeeper was required to input LWOP for PP 19.
Specifically, the timekeeper attested that once she discovered that
complainant had exhausted her SL she contacted the FMLA Coordinator,
the Acting Plant Manager, and her manager to determine whether they had
received a request from complainant to change her SL to AL. When it was
confirmed that they had no record of such a request, the timekeeper input
LWOP. She attested that she is only permitted to change SL/AL to LWOP.
While complainant argues that she submitted a request to utilize her
AL, if her SL should run out, there is no evidence that the agency was
in receipt of her note during the relevant time. The record contains a
copy of an August 21, 2007 memo from the FMLA Coordinator to complainant,
bearing a handwritten note at the bottom of the document stating: "If
I run out of sick leave please start using my annual leave. Attached is
Dr. Note." Further, "This letter was mailed regular mail August 23, 2007"
is handwritten at the top of the page. However, there is no evidence
establishing when the agency received the note.
Complainant has not established any nexus between her prior EEO activity
and the agency's action. While the relevant agency officials were aware
of complainant's prior EEO activity, there is no evidence that this was
the motivation for charging her with LWOP.
CONCLUSION
Accordingly, the agency's decision finding no discrimination was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 20, 2009
__________________
Date
1 The agency's decision notes that complainant acknowledges that a
payroll adjustment was completed and she has been paid for the time she
was incorrectly charged with LWOP.
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0120090771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090771