Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 21, 2014

0120121074 (E.E.O.C. Feb. 21, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120121074

Hearing No. 440-2011-00052X

Agency No. 4J-606-0041-10

DECISION
On January 3, 2012, Complainant filed an appeal from the Agency’s November 28, 2011, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time City
Carrier at the Agency’s Chicago Carrier Annex, located in Chicago, Illinois.

Complainant filed an EEO complaint dated March 25, 2010, alleging that the Agency
discriminated against her on the bases of sex (female), disability (herniated disc), and age (over
40) when:

Since September 2009 (pay period 21/09), Complainant has been subjected to
discriminatory harassment, including but not limited to: (1) Since pay period 21/09 she
has been charged with Leave Without Pay (LWOP); (2) in November 2009, she was
0120121074

2
threatened with discipline; and (3) on December 12, 2009, she was placed on
Emergency Placement; and (4) she was not paid overtime.1

At the conclusion of the investigation, the Agency provided Complainant 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 Complainant failed to comply with the Acknowledgment Order.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency noted that Complainant alleged she was placed on Emergency
Placement in Off-Duty Status on December 12, 2009. The Agency stated that a February 5,
2010 union grievance decision rescinded Complainant's Emergency Placement in Off-Duty
Status and compensated her for the LWOP. The Agency claimed that the grievance decision
completely eliminated all the effects of the alleged discriminatory actions. Further, the Agency
argued there is no reasonable expectation that the alleged discrimination was likely to reccur.
Thus, the Agency dismissed this issue as moot. Alternatively, the Agency addressed the
dismissed issue on the merits along with the remaining issues in the complaint and found
Complainant failed to prove she was subjected to discrimination as alleged.

On appeal, Complainant claims the Agency failed to send her representative documents so she
could timely respond to the AJ. Thus, she claims the AJ’s dismissal of her hearing request
was improper.

In response to Complainant’s appeal, the Agency notes that Complainant was served copies of
all documents filed by the Agency. The Agency also states that despite being instructed by the
AJ to do so, Complainant never filed a Designation of Representative or Prehearing
Submission to the AJ within the requisite timeframe. The Agency claims the AJ’s dismissal of
Complainant’s request for a hearing was proper.

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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

1 The Agency noted that any discrete acts, which occurred more than 45 calendar days prior to
December 15, 2009, when Complainant initially contacted the EEO office, were untimely,
would not be processed as individual claims, and would not entitle Complainant to remedy for
those claims. However, the Agency stated that such acts would be considered as part of
Complainant’s overall harassment claim. The Agency noted that 45 days prior to the date of
contact was October 31, 2009.
, at 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
0120121074

3
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”).

Upon review, we find the AJ’s dismissal of Complainant’s hearing request was appropriate.
Specifically, we find Complainant failed to show the AJ abused her discretion in dismissing her
hearing request. In addition, we note Complainant does not challenge the issues identified in
the Agency’s final decision.

With regard to issues (1) and (3), in her affidavit Complainant stated that she was placed on
Emergency Placement in off duty status from December 12, 2009, through December 25,
2009, by Supervisor, Customer Services, and the Operations Manager. Complainant stated
that she requested annual leave be used but instead she was charged LWOP.

The Agency stated that in early December 2009, the Operations Manager began noticing
Complainant behaving erratically, failing to follow instructions, requiring daily street
assistance, delaying the mail by not going to the street at her assigned time or returning with
undelivered mail.

On December 11, 2009, the Supervisor, Customer Services placed Complainant on Emergency
Placement for not performing her duties as a Letter Carrier and instructed her not to return to
work until Monday, December 14, 2009. The Agency stated that on December 12, 2009,
Complainant arrived at the Annex, clocked in and began moving towards her case. The
Supervisor, Customer Services explained that she instructed Complainant to leave the building
and Complainant refused to leave. The Supervisor, Customer Services then called the Postal
Police to escort Complainant out of the building.

The Agency noted that on December 14, 2009, Complainant was instructed to case First-Class
letters and First and Second-Class Flats and to deliver the mail assigned to her route; however,
she did not deliver any of the mail. As a result, the Agency stated it placed Complainant in an
off-duty status, without pay, pending investigation. The Operations Manager stated that
Complainant was not performing her assigned duties, was argumentative, and was exhibiting
aggressive behavior towards the Supervisor, Customer Services.

On December 21, 2009, the Operations Manager requested a Fitness-for-Duty Examination
(FFDE) for Complainant due to her alleged erratic behavior. On December 24, 2009, the
Operations Manager spoke with the Manager, Human Relations, Chicago District, regarding
the FFDE. The Manager, Human Relations, disapproved the FFDE request and instead
instructed the Operations Manager to bring Complainant back to work, give her a pre-
disciplinary interview regarding unauthorized curtailment of mail, delay of mail, and leaving
her assignment without permission.

0120121074

4
Complainant claimed that Person A, Person B, and Person C were comparative employees.
Complainant stated that Peron A, Person B, and Person C were treated differently than she was
under similar circumstances.

The record reveals that Person A and Person B were disciplined for their performance
deficiencies. Person A received a Letter of Warning (LOW) on March 31, 2009, issued by the
Supervisor, Customer Services, for Failure to Follow Instructions after she failed to properly
scan delivery confirmation mail. Person B received a LOW on September 2, 2009, issued by
Manager X, for Delay and/or Failure to Deliver Mail after he left the station late and returned
late with undelivered mail on August 31, 2009. The Agency noted that Person A was not a
proper comparative to Complainant because she was a Transitional Employee and not a career
employee like Complainant. Person B is not a proper comparative because the discipline was
issued by a different person for Complainant and because Complainant’s failure to perform her
duties was on a continual, ongoing basis, unlike the situation for Person B. Complainant also
claimed that Person C was treated more favorably than her when he was paid overtime while
Complainant was charged LWOP in Pay Period 21 of 2009. Complainant is not clear how
Person C is a true comparative. There is no indication in the record or claim by Complainant,
for instance that Person C engaged in any misconduct. Also, since Person C was not
disciplined, there would be no reason Person C would be on LWOP or would be precluded
from earning overtime. In her affidavit, the Operations Manager stated that Person A, Person
B, and Person C have not engaged in behavior that merits Emergency Placement in off-duty
status.

With regard to issue (2), Complainant alleged she was threatened with discipline in November
2009, by the Supervisor, Customer Services and the Operations Manager. Specifically,
Complainant stated that she was threatened with discipline in the form of an Emergency
Placement, a LOW, and a Seven-Day Suspension.

The record shows that Complainant was issued a Letter of Warning dated November 12, 2009,
by the Supervisor, Customer Services for Failure to Follow Instructions on October 29, 2009,
when Complainant cased her DPS mail before she tied down her mail and after she was told
not to touch her DPS mail until her case was completely tied down. The LOW noted that as a
result of casing her DPS mail, Complainant did not make her leaving time of 10:00 a.m. and
needed additional street assistance to deliver her route.

The record reveals Complainant was issued a Seven-Day Suspension dated November 25,
2009, by the Supervisor, Customer Services and concurred by the Operations Manager. The
Suspension charged Complainant with Delay and/or Failure to Deliver Mail on November 12,
2009. On November 12, 2009, Complainant requested five hours of assistance on PS Form
3996 and listed several addresses. When management received Complainant’s mail at the
supervisor’s desk, they discovered there was additional mail located in the gurney for
addresses that were not listed on her PS Form 3996. The Agency noted Complainant did not
inform management that she was not delivering mail for the additional addresses located in the
0120121074

5
gurney. As a result, Complainant’s customers received their mail late and the Agency incurred
additional cost.2

On November 23, 2009, the Operations Manager and Manager Y conducted a street
observation of Complainant’s delivery practices and observed her making unauthorized
deviations from her route and leaving mail unattended at address X. On November 24, 2009,
the Supervisor, Customer Services, conducted an investigative interview regarding
management’s observations on November 23, 2009, but did not issue Complainant discipline
due to Complainant’s responses during the investigative interview.

With regard to issue (4), Complainant alleged that she was not paid overtime. In her affidavit,
Complainant stated she was not paid for overtime worked on September 19, 2009.
Complainant claimed she was told by the Agency that she would not be paid overtime because
she switched routes.

The Agency noted that effective September 12, 2009, Complainant voluntarily changed from a
Carrier Technician to a lower level City Carrier position. The Agency stated that the
Employee Everything Report (TACS) reveals that on September 19, 2009, Complainant
worked 9.95 hours of which 1.95 hours were overtime. The Agency stated that on September
19, 2009, Complainant requested and received 1.5 hours of auxiliary assistance. The Agency
noted Complainant also requested another 2.0 hours of additional overtime which was
disapproved by Manager X.

Upon review, we find Complainant failed to show by a preponderance of evidence that she was
subjected to discrimination as alleged. We note the Agency provided legitimate, non-
discriminatory reasons for placing Complainant on Emergency Placement and LWOP and for
issuing Complainant the discipline described. Complainant failed to show the Agency’s
articulated reasons were a pretext for discrimination. In addition, we find there is no evidence
Complainant was denied payment for any overtime she worked. Nor did Complainant show
that the Agency’s denial of overtime on September 19, 2009, was based on discriminatory
animus. Finally, we note Complainant did not show that similarly situated comparatives were
treated differently. Thus, we find that in the present case Complainant failed to show that the
Agency subjected her to harassment based on any of her protected bases.3

CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.

2 In a subsequent Step A grievance decision in January 2010, the Seven-Day Suspension dated
November 25, 2009, was reduced to a Letter of Warning.
3 In this decision, we do not address whether Complainant is a qualified individual with a
disability.
0120121074

6
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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

(S0610)
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

(Z0610)
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
0120121074

7
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

Date
February 21, 2014