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

Equal Employment Opportunity Commission

Feb 7, 2013

0120120562 (E.E.O.C. Feb. 7, 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. 0120120562

Hearing No. 510-2009-00199X

Agency No. 1H-336-0027-08

DECISION

On October 30, 2011, Complainant filed an appeal from the Agency’s September 30, 2011,
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. 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 notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Casual Employee,
EAS-07, at the Agency’s Tampa Logistics and Distribution Center (L&DC) in Tampa, Florida.

The record reveals that in late January-February 2008, Complainant received EEO counseling
on a claim of national origin (Hispanic) discrimination concerning alleged harassment by a
204-B Acting Supervisor (Person A) including adverse and disparate treatment with regard to
breaks, off-days, and leave. Complainant alleged that the supervisor took advantage of her
limited English proficiency to treat her differently from other employees. Complainant and the
Agency participated in a mediation session regarding her concerns, and on March 4, 2008,
entered into a written settlement agreement.

Complainant subsequently alleged the Agency breached the terms of the settlement agreement.
The Agency issued a final decision finding it did not breach the settlement agreement.
Complainant filed an appeal with the Commission regarding her breach claim.
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In EEOC Appeal No. 0120083528 (October 27, 2008), the Commission determined that the
Agency had not provided any evidence to support its final decision and presumed that the
Agency was in breach of the agreement and ordered the underlying complaint be reinstated.1

Additionally, the Commission noted that Complainant claimed she was the further victim of
unlawful retaliation for filing her original complaint when her employment was terminated by
the Agency shortly after she signed the settlement agreement. Thus, the Commission amended
Complainant’s complaint to include her claim of discriminatory/retaliatory termination. The
complaint, as amended, was remanded for further processing.
The Agency filed a request for reconsideration which was docketed under EEOC Request No.
0520090183. The Commission denied the Agency’s request for reconsideration on February
4, 2009.

Complainant filed a formal complaint dated December 15, 2008, alleging that the Agency
discriminated against her on the bases of national origin (Hispanic/Puerto Rican), color
(brown), age (49), and in reprisal for participation in the EEO process and for opposition to
discrimination when:

1. During the period of July 6, 2007, and March 28, 2008, Complainant was harassed
pertaining to breaks and schedule changes.2

2. On July 21, 2008, Complainant was terminated from the Agency.

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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on September 27, 2011.

The Agency subsequently issued a notice of final action on September 30, 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.

1 Complainant was one of four Hispanic employees (Complainant, Employee 1, Employee 2,
and Employee 3) who settled their complaints on the same date. All four complainants alleged
a breach of the settlement agreement.
2 Complainant’s complaint originally included a claim regarding career hiring; however, she
subsequently withdrew that claim while the case was pending before an EEOC Administrative
Judge (AJ).
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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, 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
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”).

In the present case, the Commission determines that there are no genuine issues of material
fact or any credibility issues which required a hearing. Moreover, we find the record in the
present case was fully developed. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.

With regard to issue (1), Complainant claimed that from July 6, 2007, through March 28,
2008, she was harassed pertaining to breaks and schedule changes. In her affidavit,
Complainant states that on November 16, 2007, she had to wait for the mail to finish before
going on break, while others did not have to wait. Other than this one occurrence,
Complainant does not identify any other specific dates where she experienced alleged
harassment regarding her breaks. Moreover, Complainant did not provide the name of anyone
treated differently.

In her affidavit, Person A states that she monitors all employees for appropriate break time
adherence. Person A stated that if an employee takes an extended break it is her job to address
the employee. The record reveals that in addition to Complainant, Person A spoke to over 20
casuals of all national origins, ages, and color, regarding extended breaks and lunches.

Complainant also alleged that Person A harassed her with regard to schedule changes. In her
affidavit, Complainant alleged that African-Americans were given preferred days off and
schedule changes while she was continually denied requested days off and schedule changes.
Specifically, Complainant states that on October 9, 2007, she asked for time off to care for her
grandson, and Person A told her she would have to wait 24 hours. Complainant also states
that on October 10, 2007, she asked to leave early, and she claims Person A did not let her go
until 1:00 a.m. Complainant also states that Peron A told her that she needed to give
Complainant another week off because it was her turn and as a result Complainant had to take
off until October 26, 2007, despite taking a week off to care for her grandson.

In addition, Complainant stated that on December 14, 2007, she did not get paid. Complainant
explained that she asked Person A why she did not get paid and Person A told Complainant she
did not know and that she did not have anything to do with it. Complainant stated she asked if
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she could get an advance and Person A said she did not know how to do it. Complainant
alleged that when it was getting close to payday, Person A came to her work area to tell her
that she was probably not going to get a pay check.

Finally, Complainant stated that on December 21, 2007, Person A told her that she would have
Christmas Day off and as a result she did not report to work on the night of December 24,
2007. Complainant stated she reported to work on December 25, 2007, and was punished with
a week without pay for not reporting to work on December 24, 2007.

The record reveals that casuals are a supplemental workforce and are not guaranteed a set
number of hours of work, vacation, or sick leave. Person A stated that the casual work
schedule could change anytime due to mail volume or having to meet the required casual
complement. Person A noted that on some occasions some casuals would only work four, six,
or eight hours, depending on the time they began the tour.

With regard to her claim that she was treated differently regarding not being allowed to request
specific days off, Complainant fails to cite specific dates or names of comparatives although
she generally states that African-Americans are given preference. The record shows that
Complainant requested and was approved time off on several occasions contrary to her
allegations. Complainant failed to identify any specific date her request for a day off was
denied.

With regard to her leave request on October 9, 2007, the record reveals that the request was
ultimately approved. Person A stated that she generally responds to all leave requests within
24 hours, which she did in this case. With regard to Complainant’s claim that on October 10,
2007, she was not allowed to leave earlier than 1:00 a.m., Person A stated that she did not
recall the specific incident; however, she stated that if Complainant could not leave earlier than
1:00 a.m. it was likely due to mail volume.

We next address Complainant’s claim that she had to take her break in service in October of
2007, although she already took a week off to see her grandson that month. In her affidavit,
Person A stated that the break in service is mandatory and outside of Person A’s control.

With regard to Complainant’s claim that she did not get paid on December 14, 2007, Person A
acknowledged that when Complainant asked her why she did not get paid, Person A responded
she did not know. Person A stated that conducting payroll adjustments were not part of her
responsibility as a supervisor. She noted that this task was performed by the Attendance
Control Supervisor who worked on Tour 2. Person A noted she worked on Tour 1. Person A
explained that each time casuals would have to take the required 5-day break in service, their
information would drop from the system. She noted that Shared Services would be contacted
for corrections. Person A stated that she did learn how to complete payroll adjustments a few
months later so she would be familiar with the process when asked questions about errors with
employees’ paychecks. Person A denied going to Complainant’s work area and telling her that
she was probably not going to get a pay check.
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Next, we address Complainant’s claim that on December 21, 2007, Person A told her that she
would have Christmas Day off and when she did not show up to work on December 24, 2007,
she was charged AWOL. In her affidavit, Person A explained that no casuals were off from
December 1 through December 25 because this was "prime time" with heavy mail volume.
She noted that casuals like Complainant would have been required to work because it was the
last day mail could be delivered prior to Christmas. Person A noted Complainant was AWOL
on December 24, 2007, because she did not show up and did not have prior approval.

Upon review, we find Complainant failed to prove by a preponderance of evidence that she
was subjected to harassment. Specifically, we find that Complainant failed to establish that the
Agency’s actions were motivated by her national origin, color, age, or in reprisal for her
protected EEO activity.

With regard to issue (2), the Agency stated that Complainant was terminated for poor
attendance at a time of low mail volume when the supplemental casual workforce needed to be
reduced. Person B, Tour 1 Manager of Distribution Operations noted the L&DC experienced
a decline in its mail volume which warranted a reduction in the casual supplemental workforce
and that several employees with poor attendance were released.

The record contains a copy of an “Employee Key Indicator Report” noting that Complainant
had six occurrences of unscheduled leave for a total of 38.2 hours between April 28, 2007, and
December 6, 2007. In addition, Complainant had one incident of AWOL on December 24,
2007, for a total of seven incidents totaling 45.2 hours. The record shows that in addition to
Complainant, seven other people with between six and nine unscheduled absences, totaling
between 22 and 68 unscheduled hours, were released.

Thus, as the Agency has presented legitimate, non-discriminatory reasons for terminating
Complainant, the burden shifts to Complainant to show that the Agency’s reasons are a pretext
for discrimination.

In an attempt to prove pretext, Complainant claims after she and the other seven casuals were
terminated, the remaining employees began working six days a week and eight hour shifts.
Complainant failed to provide dates or names or any proof of this claim. Upon review, we
find Complainant failed to produce evidence that her termination was a pretext for
discrimination or retaliation.

CONCLUSION

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

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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
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 7, 2013
Date