Cheryl L. Gore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120080249 (E.E.O.C. May. 15, 2009)

0120080249

05-15-2009

Cheryl L. Gore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cheryl L. Gore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120080249

Agency No. 4J-530-0046-06

Hearing No. 443-06-00096X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's September 11, 2007, 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 Section 501

of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Complainant alleged that the agency discriminated

against her on the bases of disability (neck strain, myofascial pain,

stenosis) and reprisal for prior protected EEO activity when: (1) on

March 2, 2006, she was issued an Emergency Placement in a Non-Duty/Non-Pay

Status for allegations of violation of the Joint Statement on Violence

and Behavior in the Workplace on March 1, 2006; and (2) she was issued

a Notice of Removal dated March 9, 2006, for unacceptable conduct -

violation of zero tolerance policy.1

The record reveals that complainant is a full-time Carrier Technician at

the Wauwatosa facility. While discussing a work related assignment with

her supervisor, complainant became upset and screamed that she would not

comply. Complainant starting yelling louder and her supervisor maintained

that complainant got very close to her face and began spitting while she

was screaming. Complainant began using obscenities, said she was being

treated differently than other employees and told her supervisor that

she could not tell her what to do. Complainant's supervisor instructed

her to wait at her desk so that she could contact another supervisor.

Complainant then shouted profanities at the supervisor, went to the

time clock, clocked out and left the facility. Complainant's supervisor

maintained that complainant had a problem with her temper and that she

(the supervisor) did not feel safe. The following day, complainant was

served with the Emergency Placement off-duty order and was subsequently

served with a Notice of Removal.

Following an investigation by the agency, complainant initially requested

a hearing before an EEOC Administrative Judge (AJ) but withdrew her

request in favor of a final agency decision (FAD). The FAD found

that complainant failed to establish a prima facie case as to all

bases. Further, the agency found that even if, assuming arguendo,

complainant established a prima facie case of discrimination as to all

bases, the agency had articulated legitimate nondiscriminatory reasons

for its actions. Specifically, the agency explained that complainant

was placed off-duty because it was determined that she had displayed

inappropriate behavior toward her supervisor. The agency indicated that

pursuant to section 61.4 of the Employee and Labor Relations Manual,

an employee may be placed in an off-duty status non-pay status when she

fails to obey a direct order, provides reason to be deemed potentially

injurious to others, or disrupts day-to-day operations in any other way.

Similarly, with respect to the Notice of Removal, the agency explained

that complainant was issued the Notice of Removal based on her behavior

and actions toward her supervisor and because she had engaged in

similar inappropriate conduct in the recent past. In an attempt to show

pretext, complainant maintained that other employees were not asked to

work outside of their restrictions2, placed off the clock or issued a

Notice of Removal. The agency explained that the comparators were not

similarly situated to complainant, in that there was no evidence that

they had engaged in conduct similar to hers, e.g. that they screamed

at the supervisor, directed profanity at the supervisor, or ignored the

supervisor's instruction to stay at the facility as complainant had.

Complainant did not provide a brief on appeal.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision.

The Commission agrees that the agency has articulated legitimate

nondiscriminatory reason for its actions, namely, that complainant was

placed off the clock on March 2, 2006, due to her threatening behavior

towards her supervisor and because she failed to follow a direct order

by her supervisor on March 1st. . Further, the evidence shows that she

was issued the Notice of Removal3 because of the incident on March 1,

2006, and because a similar incident involving complainant had occurred

in the past. There was no evidence presented which demonstrated

that discriminatory animus motivated these matters. The Commission

also agrees that complainant failed to demonstrate that the agency's

nondiscriminatory reason was pretext for discrimination. Accordingly,

we find the preponderance of the evidence of record does not establish

that discrimination occurred.

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

05/15/09

__________________

Date

1 Complainant originally raised nine issues of discrimination. She

alleged, as summarized by the agency, that she was discriminated against

on the bases of her physical disability (neck strain, myofascial pain,

stenosis) and retaliation (prior EEO activity), when 1] on 03/01/06, you

were questioned about your restrictions and told you couldn't carry mail;

2] on 02/05/06, you alleged that you were told that you were fired for the

exchange of words you had with a supervisor on 02/04/06; 3] on 11/07/05,

you alleged that when you called in ill, you were told you needed medical

documentation; 4] on 11/17/05, you asked to be reimbursed for mileage

for getting medical documentation; 5] on 01/19/06, you alleged that you

were told to get a medical justification for taking leave without pay;

6] on 01/12/06 or 01/13/06, you alleged that you were asked to lie about

attempting to deliver a package to a customer; 7] on 1/20/06, management

asked you to get a medical update; 8] on 03/02/06. you were issued

an Emergency Placement in a Non-Duty/Non-Pay Status for allegations

of violation of the Joint Statement on Violence and Behavior in the

Workplace on 03/01/06; and 9] you were Issued a Notice of Removal dated

03/09/06 for unacceptable conduct-violation of zero tolerance policy.

Seven of the issues were dismissed. Allegations 1, 2, 5, 6, and 7 were

dismissed for failure to state a claim and allegations 3, and 4 were

found to be untimely. Complainant does not specifically challenge these

dismissals on appeal.

2 Contrary to complainant's contentions it was verified by the Health

Unit that the assignment that was given to complainant was within her

restrictions.

3 The Notice of Removal was not enforced and was settled in the Grievance

process.

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0120080249

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013