0120090392_Hamilton
02-25-2009
Barbara C. Hamilton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara C. Hamilton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090392
Agency No. 1G771002808
DECISION
On October 29, 2008, complainant filed an appeal from the agency's October
7, 2008 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At all times relevant to this complaint, complainant was employed as
a Mail Processing Clerk at the North District Distribution Center in
Houston, Texas. On March 21, 2008, complainant requested the use of
annual leave for March 28, 2008. Complainant's supervisor denied her
request because the maximum allowable number of clerks was already
scheduled to be off on that day. Complainant informed her supervisor
that she would call out anyway, and the supervisor told her that it was
agency policy that she produce acceptable documentation to substantiate
her absence or she would be charged with Absence Without Leave (AWOL).
On the night of March 27, 2008, complainant called into work and requested
leave-without-pay for March 28, 2008. Her supervisor again told her that
she would have to bring in appropriate documentation to substantiate her
absence or she would be charged with AWOL. Complainant asserts that she
did not believe documentation was necessary because she gave management
seven days' notice that she would not be coming in on March 28, 2008,
and she did not want the agency to know about her personal business.
Complainant was charged with AWOL, and on April 16, 2008, she received
a Notice of Seven-Day Suspension.
On May 20, 2008, complainant filed a formal complaint of discrimination
on the bases of age (DOB: 06/03/1955), and color (medium-brown) when,
on April 16, 2008, she was issued a Notice of Seven-Day Suspension.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), 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. Complainant now
appeals to the Commission.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing,1 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 alleging color and
age discrimination, the complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially
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. 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,
the 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, 134 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
In applying the disparate treatment analysis of McDonnell Douglas Corp.,
the prima facie inquiry may be dispensed where the agency articulated
legitimate, nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). To ultimately prevail, the complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves, 530 U.S. at 134; Hicks, 509 U.S. at
519; Burdine, 450 U.S. at 256.
Here, the agency articulated legitimate, nondiscriminatory reasons for
issuing complainant the Notice of Seven-Day Suspension. Specifically,
complainant failed to provide documentation that would substantiate her
need for leave-without-pay. After complainant was denied use of annual
leave, she was warned by her supervisor that if she called out anyway
she would have to provide documentation. When complainant refused to
provide the requested documentation, she was charged with AWOL and issued
the Notice of Seven-Day Suspension.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
are pretext for discrimination. Complainant asserts that her color
and age were factors because a coworker was not charged with AWOL or
issued a Notice of Seven-Day Suspension when one day she reported to
work late without calling in. Complainant alleges that the coworker
was treated better because of her age (DOB: 04/02/1968), and because
she had long black hair and was lighter skinned than complainant.
The record indicates that the coworker complainant is referring to
showed up approximately 5 minutes late for work one day2, and therefore
disciplinary action was not warranted. Further, the record indicates
that three other employees were issued removals for failure to provide
requested documentation regarding leave issues. The record is devoid
of any evidence that would establish that the agency's legitimate,
nondiscriminatory reasons for its actions are pretext for discrimination.
Therefore, we AFFIRM the agency's final decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence in the record
does not establish that discrimination occurred as alleged.
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
February 25, 2009
Date
1 We note that the agency captioned this complaint as a "mixed case" in
its final decision, although it was not processed as such. A mixed-case
complaint is a complaint of employment discrimination filed with a federal
agency, related to or stemming from an action that can be appealed to
the Merit Systems Protection Board (MSPB). 29 C.F.R. � 1614.302(a)(1).
The MSPB has jurisdiction over suspensions that are for 15 days or more.
Here, the suspension at issue was for less than 14 days; therefore,
this is not a mixed case. We further note that, notwithstanding this
mischaracterization, the agency processed the complaint appropriately,
including correctly advising complainant of her hearing and appeal
rights.
2 On appeal complainant asserts that management altered the attendance
records to make it appear that the coworker was only 5 minutes late.
Beyond complainant's bare allegations, there is no evidence in the record
to support this.
??
??
??
??
2
0120090392
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090392