0120091704
06-09-2010
Diana M. Lando, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Diana M. Lando,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120091704
Agency No. 4B028004308
DECISION
On March 4, 2009, complainant filed an appeal from the agency's February
3, 2009 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 complainant was not subjected to
unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Part-Time Flexible (PTF) Sales and Services Distribution Associate,
PG-06, at the Dennis, Massachusetts Post Office. On June 26, 2008,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of sex (female), age (40 years old), and in reprisal
for prior protected EEO activity when:
1. On or about June 27, 2008, she learned that she was not paid for a
week's salary;
2. During the various days between the period of May 23, 2008 through
September 12, 2008, she was taken off the schedule;
3. During various days between April 28, 2008 and August 18, 2008,
she was not given as many hours as Part-Time Flexible employees; and,
4. On May 10, 27, and 24, 2008 and June 7, 2008, she was not allowed to
come to work as early as other employees.1
In an investigative affidavit, complainant stated that in late
June 2008, she noticed that was not paid for Pay Period 13 Week 2.
Complainant stated that she showed the Officer-in-Charge (OIC) her pay
stub, and the OIC said that she must have forgotten to process her pay.
She further stated that the OIC processed a pay adjustment for her,
and the missing pay was included in her pay check two weeks later.
The OIC stated that complainant was paid for only one week for Pay
Period 13 because of an error in a timecard entry. According to the
OIC, the correct hours were entered for complainant but the wrong code
was submitted. The OIC further stated that when it was brought to
her attention, she offered to give complainant a money order for the
difference, which she declined. OIC testified that the proper adjustment
was made on the next paycheck.
Regarding claim 2, complainant stated that, on May 22, 2008, the OIC
called her at the Yarmouth Port Office and told her that she did not
have to come into the Dennis Post Office to work the following day,
and she had taken her off the schedule. Complainant stated that
she was taken off the schedule for May 23, June 6, and July 31, 2008.
Complainant further stated that on June 17, June 24, August 8, August 14,
and September 12, 2008, she was not put on the schedule.
The OIC stated that although complainant was scheduled to work on May
23, 2008, there was insufficient work for her to work on that date, and
the agency instructed her not to report for work. She further stated
that complainant was taken off the schedule for June 17, 2008, August 8,
2008, and August 14, 2008, because she already was scheduled to work 40
hours those weeks. The OIC stated that complainant was taken off the
schedule for June 24, 2008 and September 12, 2008, because she was already
scheduled to work more than 38 hours those weeks.2 Additionally, the OIC
stated that for the week of June 6, 2008, complainant worked 44 hours and
was therefore removed from the schedule for additional work that week.
She further stated that complainant was removed from the schedule on May
23, June 6, and July 8, 2008 because she would have otherwise received
overtime, and the volume of mail did not justify overtime.
Regarding claim 3, complainant stated that on various occasions from April
28 to August 18, 2008, her part-time flexible coworkers worked more hours
than she worked. The agency maintained, however, that complainant worked
more hours than any other part-time flexible employee from April 28,
2008 through August 18, 2008. The agency also provided time and attendance
documentation that reflects that complainant worked more hours than other
part-flexible employees during the relevant time period. Exhibit 9.
With respect to claim 4, complainant stated that she was scheduled to
report to work on May 10, 17, 24 and June 7, 2008, at a later time than
two coworkers. The OIC stated that one of the coworkers is a full-time
regular employee who reports to work at 6:30 a.m. on Saturdays as part of
her regular schedule. The OIC stated that complainant was not scheduled
at 6:30 a.m. because there was no need to have two people report to
work that early. The OIC further stated that the other coworker cited
by complainant was scheduled to report to work at 7 a.m. on May 10, 17
and 24, 2008, and complainant was scheduled to report to work at 7:30
a.m., on May 10 and 17, 2008. She stated that the schedules were solely
based upon the "needs of the office" at particular times. Affidavit B,
p. 8.
At the conclusion of the investigation, complainant was provided with a
copy of the report of the 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). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged. 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").
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 discrimination. Nevertheless, we find that the agency
provided legitimate, non-discriminatory reasons for its actions,
as explained in detail above. After a thorough review of the record,
we find that complainant failed to prove that the agency's articulated
reasons are pretext for unlawful discrimination. Thus, we conclude that
the agency properly found no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted 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.
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
____06/09/10______________
Date
1 We note that complainant also alleged that she was subjected to
unlawful discrimination when on or about October 2 and 10, 2008, she was
given Pre-Disciplinary Interviews. The agency dismissed this claim on
November 3, 2008 for failure to state a claim. However, we exercise our
discretion not to review this dismissal herein because complainant does
not challenge the dismissal on appeal. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).
2 According to the OIC, she is given a budget of how many clerk hours she
can use each week. Upon receipt of the budget, she subtracts the regular
employee's hours and then tries to split the remaining hours equally
between the PTFs. Although the schedule is posted a week ahead of time,
she stated that it can change daily if the need arises. For example,
she indicated that if there is a large volume of mail in the morning,
she may keep someone longer. If the machines at the counter malfunction,
she might have to keep someone later in the afternoon. However, if
there is a very small volume of mail in the morning, she may have to
send employees home when all of the mail is distributed. According to
the OIC, PFT schedules are subject to change on a daily basis.
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0120091704
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091704