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

Equal Employment Opportunity Commission

May 15, 2013

0120120724 (E.E.O.C. May. 15, 2013)

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
(Southeast Area),
Agency.

Appeal No. 0120120724

Hearing No. 410-2010-00334X

Agency No. 4H-300-0284-09

DECISION

On November 19, 2011, Complainant filed an appeal from the Agency’s notice of final action
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. For the following reasons, the Commission AFFIRMS the
Agency’s notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time
Flexible (PTF) at the Agency’s Buford Main Post Office. During the relevant time, Person A
was the Station Manager at the Buford Annex. Person B was the Supervisor of Customer
Services at the Buford Post Officer Carrier Annex. Person C was the Acting Manager of
Customer Services at the Buford Post Office Carrier Annex.

On December 16, 2009, Complainant filed an EEO complaint, as amended, alleging that the
Agency discriminated against her in reprisal for prior protected EEO activity when:

1. On September 21, 2009, Complainant was issued a Seven-Day Paper Suspension for
Failure to be Regular in Attendance and Failure to Follow Instructions;

2. On November 6, 2009, and December 12, 2009, Complainant was issued a split
schedule; and

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3. On February 1, 2010, Complainant clocked in late and received a late slip.

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 timely requested a hearing and the AJ held a hearing
on March 15, 2011. The AJ issued a decision on September 29, 2011.

In his decision, with regard to issue (1), the AJ found that from June 6, 2009, to September 9,
2009, Complainant was late to work on 12 occasions. The AJ noted that Person B conducted
an Official Discussion with Complainant concerning her attendance on August 17, 2009. The
AJ noted that from August 17, 2009, to September 5, 2009, Complainant was tardy another
four times. The AJ stated that on September 21, 2009, Person B issued a Seven-Day
Suspension to Complainant for failure to be regular in attendance and failure to follow
instructions pursuant to a progressive discipline system.

The AJ noted that Complainant had previously been issued a March 5, 2009 Letter of Warning
for her attendance from November 2008 through March 2009. The AJ noted that on April 27,
2009, Complainant entered into an EEO settlement agreement with Person A to reduce the
Letter of Warning to an Official Discussion. The AJ stated that under the Agency’s Collective
Bargaining Agreement, an Official Discussion is not considered a form of discipline. The AJ
noted that in this case, the system had retained that Complainant had received a Letter of
Warning because the Letter of Warning had not been reduced in the system to an Official
Discussion as per the April 27, 2009 EEO settlement agreement.1

The AJ noted Person B testified that she did not know Complainant’s prior Letter of Warning
had been reduced to an Official Discussion when she issued Complainant the Seven-Day
Suspension. The AJ found Person B’s statement that she issued Complainant the Seven-Day
Suspension in response to a prompt by the Agency’s electronic records system to be credible
and undisputed. The AJ determined Complainant did not show that the Agency’s reason for
issuing her the discipline was mere pretext for discrimination.

With regard to the claim that the Agency issued Complainant a split schedule on November 6,
2009, and December 12, 2009, the AJ noted that Complainant was a Part Time Flexible (PTF)
employee at the time she was issued a split schedule. The AJ determined the record
established that split scheduling was a common practice for PTF employees. The AJ found the
Agency articulated a legitimate, non-discriminatory reason for its scheduling decision; not only
was split scheduling a requirement of the PTF position, but the record established that
beginning on September 18, 2009, other clerks were also assigned split schedules. The AJ
found that Complainant failed to rebut the Agency’s non-discriminatory reasons that split
scheduling was a common practice and that there was a shortage of staff during the relevant
time.

1 Complainant has not alleged breach of the settlement agreement.
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With regard to issue (3), the AJ noted that the Agency had a legitimate reason for issuing
Complainant a tardy slip, because she was tardy on February 1, 2010. The AJ stated
Complainant was scheduled to come into work at 5:30 a.m.; however, she clocked in six clicks
late (about 5 minutes late).2

The AJ noted Complainant does not deny that she was tardy on
the date in question. The AJ noted Complainant alleged that she should not have been written
up because of a five-minute leeway policy. The AJ noted that the Supervisor’s Guide to
Scheduling and Premium Pay, a manual for supervisors with the Agency, contains a five-
minute leeway policy to excuse employees when there is congestion or other conditions at the
time clock. The AJ noted that Person C testified there is no time clock congestion in the office
for associates, thus nullifying the need for the five-minute leeway policy. The AJ found the
Agency established that the five-minute “leeway rule” did not apply to the Buford Annex.
Additionally, the AJ noted Complainant claimed that she clocked in at the same time as
Employee X, who did not receive a late slip. The AJ determined Employee X was not an
appropriate comparative because she was a Rural Carrier Associate (RCA), not a career
employee like Complainant, and Employee X was not subject to the same discipline system as
Complainant. The AJ noted that Employee X could have been terminated at any time for
violating work rules. The AJ noted Complainant claimed that she and Employee X clocked in
at the same time on February 1, 2010. However, the AJ found Person C agreed to change
Employee X’s schedule to a later start time prior to February 1, 2010. The AJ recognized that
while there was conflicting testimony between Person C and Employee X as to her start time,
with Employee X stating the start time was 5:40 a.m. and Person C stating it was 5:45 a.m.,
however, the AJ found it a moot point because Employee X was not a permanent employee
like Complainant.

The Agency subsequently issued a notice of final action dated October 14, 2011. The
Agency’s notice of final action fully implemented the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

2 Although the AJ’s decision stated that on February 1, 2010, Complainant was scheduled to
come in at 5:40 a.m., we note the record reveals that Complainant was scheduled to report at
5:30 a.m.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

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). She must generally 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).
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 U.S.Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t 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
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy, EEOC Request No. 05950351 (December 14, 1995).

At the outset, we note that on appeal, Complainant does not challenge the definition of the
complaint. After a careful review of the record, the Commission finds that the AJ's findings
of fact are supported by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations, policies, and laws.
Moreover, we find the record was fully developed in this case. In the present case, the record
supports the AJ’s finding that the Agency presented legitimate, non-discriminatory reasons for
its actions. Complainant failed to show by a preponderance of evidence that the Agency’s
actions were a pretext for retaliation.

CONCLUSION

Accordingly, the Agency’s notice of final action is AFFIRMED.

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:

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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
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
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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 15, 2013
Date