0120080683
09-28-2009
Debra S. O'Sullivan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Debra S. O'Sullivan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080683
Agency No. 1F-853-0042-06
DECISION
On November 17, 2007, complainant filed an appeal from the agency's
October 16, 2007 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that it did not remove complainant
from her position in reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Maintenance Support Clerk in Phoenix, Arizona. On July 7, 2006,
complainant filed an EEO complaint alleging that the agency removed
complainant from her position effective April 14, 2006 because of her
previous EEO activity.
On July 24, 2006, the agency initially issued a final decision in
which it dismissed complainant's complaint on the basis that it was
initiated by untimely EEO counselor contact. Complainant appealed
the matter to the Commission, and in a decision dated April 27, 2007,
the Commission reversed the agency's dismissal and ordered the agency to
process complainant's complaint from the point processing ceased. Debra
O'Sullivan v. United States Postal Service, EEOC Appeal No. 0120064953.
During the investigation, the EEO investigator asked complainant to
provide responses to 38 questions and provide documentation supporting her
complaint. Complainant did not respond to the investigator's questions
and stated that she had already answered most of these questions during
the investigations of three of her previous complaints. However, we note
that in a pre-complaint statement for the instant complaint, complainant
stated that the agency removed her after it denied her request for a
leave of absence without pay so that she could attend Pharmacy School.
Complainant stated that another employee has been granted an alternative
work schedule so that he could attend a vocational school, and another
employee was granted a leave of absence in order to study overseas.
Complainant further stated that her supervisor led her to believe that
she would be granted an alternative schedule so that she could attend
Pharmacy School and mentioned that a mock or mirror position could be
created so that someone could be detailed into complainant's position
for the duration of her leave of absence. Complainant also alleged that
the decision to deny her request for leave without pay was denied by the
Plant Manager's secretary, and the Plant Manager denied her requests to
meet with him.
Complainant's supervisor stated that in April 2005, complainant informed
her that she had been accepted to attend Pharmacy School for three years
and requested a reduced work schedule beginning August 24, 2005, in which
she would only work on weekends. She stated that she told complainant
that she could not approve complainant's request. The supervisor further
stated that she never told complainant that "something could be worked
out," but she did state that complainant could submit a letter to the
Manager requesting a modified schedule. Affidavit B, p. 1. She stated
that the Manager denied complainant's request for a modified schedule
on July 8, 2005 and informed complainant that she could submit a written
request for leave of absence to the Senior Plant Manager.
The supervisor further stated that complainant amassed 352 hours of
unscheduled leave from August 29, 2005 through November 2, 2005, and
the only documentation provided was a note from complainant stating
that she should be excused from work October 8 -10, 2005. She stated
that she issued duty status letters to complainant on September 22, 2005,
October 4, 2005, and October 2005, and fact-finding notices on October 31,
2005, but complainant failed to show up for pre-disciplinary interviews.
She stated that the agency issued complainant a proposed removal notice
on November 10, 2005 for failure to report to work and abandoning
her job.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). In its decision, the agency dismissed complainant's
complaint on the basis that she elected to pursue the same matter with
the Merit Systems Protection Board (MSPB). The decision alternatively
addressed the merits of complainant's complaint and determined that
complainant failed to prove that she was subjected to reprisal as alleged
because she did not show that the agency's articulated reasons were
pretext for reprisal. Complainant did not submit a statement on appeal,
and the agency requests that we affirm its final decision.
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 EEOC Management
Directive 110, 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").
As an initial matter, we note that complainant withdrew her MSPB
appeal on or about July 3, 2006. Consequently, we address the merits
of complainant's EEO complaint herein. 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). Complainant must initially establish
a prima facie case by demonstrating that he or 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
In this case, we assume arguendo that complainant established a prima
facie case of reprisal. Nonetheless, we find that the agency provided
legitimate, non-discriminatory reasons for its actions. Specifically,
agency management stated that complainant was removed because she
accumulated 352 hours of unscheduled leave from August 29, 2005 through
November 2, 2005, and the only documentation she provided was a note
stating that she should be excused from work October 8 -10, 2005.
Management further stated that complainant also was removed because
she failed to report to pre-disciplinary interviews and call into the
unscheduled leave request line. Additionally, management stated that
when complainant met with management on December 16, 2005 to discuss her
absenteeism, she did not deny that the absences outlined in the notice
of charges. Management further stated that complainant stated that she
could not wait any longer for the agency to approve her request for
a leave of absence to attend Pharmacy School, and she had decided to
enroll in Pharmacy School and not report to work.
Complainant alleged that another employee was granted a leave of absence
to study overseas. However, the record reveals that the employee's leave
of absence was only for three months, whereas complainant sought a leave
of absence for possibly two or more years to attend Pharmacy School.
Complainant further stated that another employee went to Thailand and
never returned to work, but the record reveals that this employee was
issued a notice of removal on March 10, 2005 for failing to report
to duty. Complainant also stated that an employee was granted an
alternate work schedule to attend vocational school, but she did not
identify the employee. Finally, complainant alleged that the Plant
Manager denied her requests to meet with him, but the record reflects
that the agency sought to meet with complainant and discuss her absences
on several occasions. We find that complainant failed to prove that the
agency's non-discriminatory explanations are pretext for reprisal. Thus,
we find that the agency properly found no reprisal.
CONCLUSION
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
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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
_________09/28/09_________
Date
2
0120080683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120080683