0120092811
10-27-2009
Daphne R. Guient, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daphne R. Guient,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092811
Agency No. 4G-700-0192-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 28, 2009 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.
During the period at issue, complainant was employed as a Time and
Attendance Collection System (TACS) Clerk, PS-07, at the agency's
Louisiana District, Finance Office in New Orleans, Louisiana.
The record reflects that complainant, as a TACS clerk, was responsible
for ensuring that supervisors have properly entered data regarding an
employee's schedule, work hours, leave and various other data associated
with an employee's time and attendance into TACS. The record further
reflects that TACS is comprised of twelve modules that a user accesses
to enter information; and an employee's access to modules in TACS varies,
depending on the employee's job.
In May 2007, the Manager of Distribution Operations (MDO) asked
complainant if she would be willing to work a detail for him to help him
make time cards entries and eliminate discrepancies in TACS involving
current and former employees of P&DC. Complainant's first-line
supervisor (S1) agreed to the detail.1 On May 30, 2007, the agency
detailed complainant to the position for 90 days. The record reflects
that complainant's detail ended on or about August, 2007.
On November 7, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that from August 10, 2007 to September 13,
2007, she was subjected to harassment and a hostile work environment in
reprisal for prior protected activity when:
1. her supervisor limited her access to TACS thereby cancelling her
detail;
2. her supervisor denied her higher level pay;
3. her supervisor withdrew her access to electronic resource management
system (eRMs)2;
4. her supervisor limited her access to TACS after she returned to her
bid job;
5. her second-level supervisor directed her to stop copying higher level
management on her e-mails;
6. her supervisor sent an e-mail to her stating that her knowledge of TACS
is very limited and other supervisors were copied on the message; and
7. her supervisor marked her sick leave as unscheduled.
At the conclusion of the investigation, complainant was provided 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. After the pre-hearing conference, complainant filed
a motion on or about March 28, 2008, to have the AJ recuse himself,
a motion that the AJ denied on February 27, 2009. On April 21, 2009,
a hearing was held before the AJ. After considering the testimony
of the witnesses, the AJ issued a decision on May 19, 2009, finding
no discrimination. Therein, the AJ determined that complainant did
not show by a preponderance of the evidence that she was discriminated
against on the basis of retaliation.
The AJ noted that in regard to claim 1, during complainant's detail,
MDO granted complainant privileged access to TACS for all employees in
order to assist him with correcting clock rings of employees, both within
and outside of complainant's supervision at the plant. Complainant was
also granted access to eRMS in order to perform leave management tasks
for employees under her supervision. The AJ noted that in response to
insubordinate emails sent from complainant to other agency officials,
MDO decided to no longer allow complainant access to TACS for employees
outside of her supervision during her detail, which was in accordance
with agency policy. The record reflects that the agency had implemented a
policy that supervisors were solely responsible for making the appropriate
time and attendance entries for their subordinates in TACS.
The AJ noted that the Finance Manager (FM) who had no knowledge of
complainant's prior protected activity, supported S1's decision to enforce
the agency policy regarding TACS access by a non-supervisory employee.
FM testified that it is the agency's policy that "if you're in acting
capacity like detail, your scope of responsibility on the TACS access is
only for that pay location or your direct employee...during that time we
did have a lot of issues about clocking errors. And that's one of our
scope of fixing those errors. So we can pay the employee correctly." FM
stated that because complainant's access was terminated and MDO ended
complainant's detail because she was unable to perform her duties.
Specifically, FM stated "but the authority to send somebody back, that
is [MDO's] decision." The AJ noted that according to FM, MDO ended
complainant's detail, not S1.
Regarding claims 2 and 3, the AJ noted that when MDO ended complainant's
detail and instructed her to return to her bid position early August 2007,
complainant was no longer entitled to higher level pay that she earned
in her detail position. The AJ noted that complainant acknowledged that
once her detail ended and she returned to her duties as TACS clerk,
she was no longer entitled to access eRMS. The AJ further noted that
complainant simply contends that S1 should have not asked the clerk to
disapprove her access but that [MDO], who had granted her access during
the detail, should have been the one to terminate her access.
Regarding claim 4, the AJ found that it unlikely that S1 would retaliate
against complainant by limited her access to the Timecard Entry Report
module on the assumption that complainant, who had been a TACS clerk
for almost six years, was unaware that she could access Timecard
Reports through the PPWK module in TACS. The AJ further noted that
the PPWK module is directly below the Timecard Entry Report module on
the drop-down menu and that there are approximately thirteen modules on
the menu. The AJ determined that it was plausible that S1 assumed that
complainant knew how to run Timecard Reports through the PPWK module
through on-the-job training. The AJ noted in her email dated September
7, 2007 to S1, complainant stated that S1 failed to provide her an
"intelligent response" to her responses for access to the Timecard
Entry Report module. The AJ determined that the inference was that S1
responded to complainant's requests at the time, but not to complainant's
satisfaction.
Regarding claim 5, the AJ noted that FM testified that his supervisor
instructed him to advise complainant and S1 to cease copying him and
others on the various emails. Specifically, FM stated that his supervisor
"told me to resolve those local issues...he doesn't need to be copied
on those e-mails." FM further stated that he called complainant and
"told her to stop sending e-mail to the southeast area." FM stated that
he gave the same instructions to S1. The AJ concluded that FM was not
acting out of retaliatory motive but at the behest of his supervisor;
and that FM believed the matter should have been resolved at a level
below his and his supervisors.
Regarding claim 6, the AJ noted that in his affidavit, S1 explained that
his September 4, 2007 email was in response to complainant's September 1,
2007 email, and he copied the same individuals she copied in her email.
The AJ also noted that complainant's September 1, 2007 email was not to
S1, but to a Postmaster at the agency's Simsboro, Louisiana facility.
The AJ determined that complainant sent copies of the emails not only
to S1, but S1's first and second supervisors; and that in her email,
complainant gratuitously observed to the postmaster that her supervisor
removed her "access" [named TACS module] for "personal reasons."
Regarding claim 7, the record reflects that on September 13, 2007,
complainant called into the Integrated Voice Response (IVR) system and
requested to use sick leave for her scheduled September 13, 2007 work day.
The record further reflects that because complainant used the IVR system,
the IVR automatically coded her as unscheduled. However, the record
reflects that complainant's use of scheduled leave was nevertheless
approved, properly inputted and did not lead to any disciplinary action
against her. The AJ noted that complainant's new TACS supervisor stated
that on September 13, 2007, the day for which complainant requested leave,
she began her detail as the complainant's supervisor.
On appeal, complainant argues that the AJ erred as a matter of law
by failing to grant her motion for the AJ's recusal and finding no
discrimination. Complainant states, for example, that before Hurricane
Katrina, the Commission's New Orleans Field Office was housed on 701
Loyola Street in New Orleans, and that the agency "owns this building.
EEOC was a tenant in the building for decades renting from the agency.
The Postal Service was EEOC's 'landlord.' The Postal Service had
given the agency huge office space and reserve parking. The postal
employees, including myself that work at 701 Loyola Avenue, would see
the judges talking with postal managers and going to lunch with them.
If you filed an EEO [complaint], the judges almost always rule against
the employees and in favor with the agency." Complainant further argues
that her, her representative and witness "have had had EEO hearings with
and have worked in the same building with [AJ]. It was impossible for
[AJ] to be impartial. He was biased against me, my representative and
my witness."
Further, complainant argues that the AJ's decision finding no
discrimination "was expected and no surprise. His bias and prejudice
are obvious in the transcript from the hearing." Complainant argued
that the AJ would not allow her to present evidence during the hearing
and that when she tried to give her testimony, the AJ "challenged me,
brow beat me and rushed my testimony."
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 a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
We note that complainant, on appeal, argues that the AJ's denial of her
recusal motion was improper. However, after a careful review of the
record, we find that there was not a substantial showing of personal bias
by the AJ to deprive complainant a fair and impartial hearing. The AJ
properly denied complainant's recusal motion based on complainant's
failure to present sufficient grounds for recusal in accordance with the
Commission precedent. We find that there was insufficient evidence of
personal bias in the AJ's conduct at the hearing to show that complainant
was denied a fair and impartial hearing.
Further, we find that complainant has not provided any persuasive argument
regarding the propriety of the AJ's finding of no discrimination.
Although the AJ did not specifically address complainant's harassment
claim, we find that the incidents of harassment identified by complainant
were neither sufficiently pervasive nor severe to create a hostile
work environment. We discern no basis to disturb the AJ's decision.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final action because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
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
October 27, 2009
__________________
Date
1 The record reflects that during the relevant time, S1 retired from
agency employment.
2 The record reflects that eRMs is a software program that the Postal
Service utilizes for leave and attendance management.
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0120092811
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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