0120141990
10-21-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120141990
Agency No. 4G-780-0217-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 26, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's New Braunfels, Texas Post Office.
On October 15, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (Hispanic), sex (female), and in reprisal for prior EEO activity when:
on August 10 and 17, 2013, she was instructed to provide medical documentation.
After the investigation, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On March 26, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex and reprisal discrimination. The Agency further found that assuming, arguendo, that Complainant established a prima facie case of race, sex and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster stated that on August 10, 2013, Complainant returned to the facility before the end of her tour. Because she returned early, Complainant's supervisor instructed her to provide documentation "to substantiate her absence." Specifically, the Postmaster stated that on August 10, 2013 "... Complainant came back to the office with part of her route and said that she was going home sick unexpectedly [which] prompted the supervisor to require her to bring documentation."
Further, the Postmaster stated that on August 12, 2013, Complainant called and informed him that she had a doctor's appointment that morning and "if I wanted her to go directly to the doctor appointment or report to work and then leave. I told her that I would let her speak with the supervisor for him to answer that question since I was not her immediate supervisor. The supervisor later told me that he told her to go ahead and report to work, and that she could leave for the doctor's appointment at 9:15 a.m. She did as he suggested, and went to the doctor but did not return. Rather, she called the office later that morning and asked to speak to me to inform me that there would be a faxed doctor's excuse for me. I told her to wait on the phone while I checked the fax machine. I returned to the phone and told her that I received it. When I reviewed it, I found that the "Certificate to Return to Work or School" was not what I considered acceptable since it did not say that she was going to be out and I questioned why she was going to be out for almost two weeks. For that reason a certified letter was sent by me to clarify the importance of a more detailed supportive excuse for further documentation."
The record reflects that on August 13, 2013, Complainant returned to work and submitted a second doctor's note. However, Agency management deemed this second note unacceptable because it did not cover her absence for August 10, 2013. The record further reflects that on August 26, 2013, Complainant went to her doctor for the third time and obtained a third note which was accepted by Agency management.
The Postmaster stated that Complainant's race, sex and prior protected activity were not factors in the management decision to instruct Complainant to provide documentation in support of her absence. Moreover, the Postmaster stated that it has always been "the supervisor's right when 'deemed necessary,' to require an employee to bring acceptable documentation when absent based on a case to case basis."
The former Supervisor Customer Services stated that during the relevant period, he was Complainant's supervisor. The supervisor stated that on August 10, 2013, Complainant returned to the Post Office "before her route was finished and claimed she was going home sick. It is normal policy to ask an employee for documentation when they leave before their tour is finished."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Finally, we note that Complainant, on appeal, raises new claims that she was subjected to sexual harassment. This new claim was not previously raised by Complainant and it is inappropriate for Complainant to raise it for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims for the first time on appeal, she should initiate contact with an EEO Counselor.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.1
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 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
October 21, 2014
__________________
Date
1 On appeal, Complainant does not challenge the November 4, 2013 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of race, sex and in reprisal for prior EEO activity when on August 10, 2013, she was yelled at and belittled in front of peers). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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