Carol Plunkett, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 6, 2007
0120071958 (E.E.O.C. Aug. 6, 2007)

0120071958

08-06-2007

Carol Plunkett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Carol Plunkett,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071958

Agency No. 1J609002006

Hearing No. 440-2006-00200x

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of 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. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the agency's decision

is affirmed in part, reversed in part and remanded.

During the relevant time, complainant worked as a Full Time Laborer

Custodial, PS-03 at the Chicago Bulk Mail Center in Forest park, Illinois.

Complainant sought EEO counseling on May 4, 2006 alleging that she was

a victim of discrimination based on her sex when:

1. On March 1, 2006 the agency denied her request for eight (8) hours

of annual leave and;

2. She was issued a Letter of Warning (LOW) on May 3, 3006 for failure

to maintain a regular work schedule.

Informal efforts to resolve complainant's concerns were unsuccessful

and on June 8, 2006, she filed a formal complaint.

On June 20, 2006, the agency partially accepted claim 2 of complainant's

complaint. The agency determined that claim 1 that the agency denied

her 8 hours of annual leave was untimely filed. Specifically, the agency

found that complainant's May 4, 2006 EEO contact regarding an event which

occurred March 1, 2006 was beyond the relevant time period for timely

seeking counseling. The agency, however accepted for investigation,

claim 2 regarding the LOW issued on May 3, 2006.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

With respect to the agency's dismissal of claim 1, a review of the

record reveals that in a document dated June 22, 2006, complainant

contends that her request for leave was denied on April 26, 2006 and

not March 1 as the agency indicates in its dismissal. In that regard,

complainant maintains that her May 4, 2006 EEO counselor contact was

timely. Upon review of the record, the Commission finds that there

is no mention by complainant of March 1, 2006 as the date her leave

request was denied. In fact nowhere in the record does complainant

refer to the date of March 1, 2006. Where as here, there is an issue

of timeliness, "[a]n agency always the burden of obtaining sufficient

information to support a reasoned determination as to timeliness."

Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1944)

(quoting Williams v. Department of Defense, EEOC Request No. 05920506

(August 25, 1992)). In addition, in Ericson v. Department of the Army,

EEOC Request No. 05920623 (January 14, 1993), the Commission stated that

"the agency has the burden of providing evidence and/or proof to support

its final decisions.

Therefore, the Commission finds that the agency has failed to provide

sufficient evidence to support its dismissal of claim 1 as untimely.

Consequently, the Commission finds that the agency's decision concerning

claim 1 was improper and is reversed.

At the conclusion of the investigation of claim 2, 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. The record indicates, however, that

because complainant failed to follow the AJ's orders regarding submission

of documents, the AJ dismissed complainant's hearing request and remanded

the matter to the agency for issuance of a final decision.

In its February 3, 2007 final decision, the agency incorporated by

reference, the dismissal of claim 1. After considering the merits

of claim 2, the agency concluded that complainant did not prove that

the LOW was discriminatory. According to the agency, complainant

failed to present a prima facie case of sex discrimination as alleged

because complainant failed to demonstrate that she was treated less

favorably than similarly situated individuals. The record discloses

that the comparators complainant named received letters of warning for

attendance irregularities as well. The agency determined further that

even assuming arguendo, the complainant established a prima facie case

of sex discrimination, the agency proffered legitimate-nondiscriminatory

reasons for its actions, and complainant failed to demonstrate that the

agency's reasons were a pretext for discrimination.

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).

The Commission determines that the agency articulated legitimate

non-discriminatory reasons for the LOW issued to complainant on May

3, 2006. Specifically, the agency indicated that prior to May 3,

2006; complainant had been warned regarding her frequent unexcused

absences and tardiness. In its final decision, the agency states

that complainant was given a pre-disciplinary discussion on March 4,

2006 regarding her attendance irregularities and advised to improve.

However, the record, including the agency's own LOW, indicates that a

pre-disciplinary meeting was held with complainant on April 29, 2006.

According to the agency, when complainant's attendance did not improve,

a LOW was issued on May 3, 2006 in accordance with agency policy and the

collective bargaining agreement. On appeal, complainant contends that

she was never given a pre-disciplinary interview. However, upon review

of the record in its entirety the Commission finds that complainant's

assertion is not persuasive evidence that the agency's conduct regarding

issuing the LOW was discriminatory.

The Commission finds therefore, that complainant failed to present

evidence that more likely than not, the agency's articulated reasons

for its actions were a pretext for discrimination. Complainant fails to

provide evidence that the May 3, 2006 LOW was based on any discriminatory

animus toward her sex.

Therefore, after careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and

evidence not specifically addressed in this decision, we affirm the

agency's dismissal of claim 2 regarding the LOW and reverse the agency's

dismissal of claim 1 as untimely. The claim is remanded to the agency

for processing in accordance with this decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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 6, 2007

__________________

Date

6

0120071958

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120071958