0120083952
03-10-2009
Dionne Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dionne Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083952
Agency No. 4C-440-0020-08
Complainant filed a timely appeal with this Commission from the
agency's final decision dated August 12, 2008, dismissing, in part, her
complaint of unlawful employment discrimination and in part, finding no
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
On February 13, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), color (black)1, sex (female)
and in reprisal for prior protected activity.
By partial acceptance/partial dismissal letter dated May 21, 2008,
the agency determined that complainant's complaint was comprised of the
following claims:
1. On October 1, 2007, she was made aware that a 14-day suspension dated
February 24, 2006 had been issued to her;
2. On August 15, 2007, she was issued a Notice of Removal for improper
conduct and subsequently removed on October 1, 2007.
3. In January 2006, she was accused of falsifying documentation.
The agency accepted claims (1) and (2) for investigation. However,
it dismissed claim (3) for untimely EEO Counselor contact. The agency
stated that the alleged incident set forth in claim (3) took place in
January 2006, but complainant did not make any EEO Counselor contact
until 652 days later, and was thus untimely.2
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). Upon failing to
request either a hearing or a final agency decision, the agency issued
a final decision in accordance with 29 C.F.R. � 1614.110(b).
In its final decision dated August 12, 2008, the agency dismissed claim
(1) on the grounds of untimely EEO Counselor contact. The agency
asserted that complainant received written notice of the February 24,
2006 suspension in August 2007, at the very latest when she received
her August 15, 2007 Notice of Removal. The FAD stated that complainant
did not initiate EEO counselor contact until November 13, 2007, nearly
double the time limit permitted to initiate the EEO process.
The agency also dismissed claim (1) on the grounds of failure to state a
claim finding that it was a collateral attack. Specifically, the agency
noted that a removal notice issued on February 24, 2006 was reduced to a
14-day suspension through the grievance process. The agency found that
complainant was improperly using the EEO process to address matters that
occurred as part of the grievance process.
In the alternative, the FAD also addressed the merits of claim (1).
The agency found that complainant failed to establish a prima facie
case of discrimination. The agency further found that it articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that complainant failed to timely report an accident.
The agency found that complainant failed to establish that the agency's
articulated reason was pretext for discrimination.
Regarding claim (2), the agency found that it articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that a named Postmaster (P1) stated that complainant admitted
an intent to remove mail and coupons for her own personal use from the
undeliverable bulk business mail (UBBM). The agency further found that
complainant failed to establish that the agency's articulated reason
was pretext for discrimination.
Claim (1)-14-day Suspension
The Commission finds that the agency properly dismissed claim (1)
for failure to state a claim. The record reflects that the agency
initially issued complainant a Notice of Removal dated February 24, 2006.
The record contains a Step Three Grievance Settlement dated June 8, 2006.
Therein, complainant's Notice of Removal dated February 24, 2006 was
reduced to a 14-day suspension. The record reflects that complainant's
claim in her EEO complaint is the 14-day suspension (and not the Notice
of Removal dated February 2006), which was a product of the grievance
process.3
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised her challenges to actions which occurred during the
grievance process was at that proceeding itself. It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred during the grievance process.
Claim (2)-Removal Effective October 1, 2007
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). She
must generally establish a prima facie case by demonstrating that
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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The record reflects that the agency articulated legitimate,
nondiscriminatory reasons for complainant's Notice of Removal. The record
contains a Notice of Removal to complainant from a named Postmaster
(P1) dated August 15, 2007. Therein, P1 asserts that complainant is
being terminated for removing undeliverable mail from a postal facility.
The record also contains a copy of a report from a Special Agent in Charge
(SA1) with the agency's Office of Inspector General (OIG). Therein,
SA1 states that complainant placed certain mailings in her personal bag
and intended to convert them for her personal use. The OIG's report
also states that "[complainant] stated that she was not aware that she
was not permitted to take items from the mail or items undeliverable."
The record also contains an affidavit from P1. Therein, P1 asserts that
she based her decision to remove complainant on the OIG investigation
and interviews with complainant. P1 further asserts that complainant
admitted that she was going to remove mail and use coupons she cut from
the UBBM mail for her personal use.
Upon review of the record, we find that complainant failed to establish
that the agency's articulated reason was pretext for discrimination.
To the extent that complainant asserts that she was not aware that she
was not allowed to take mail from the UBBM, we find that this assertion
is insufficient to establish that the agency's articulated reason was
pretext for discrimination.
Accordingly, for the reasons stated herein, we AFFIRM the agency's final
decision.4
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, D.C. 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
March 10, 2009
Date
1 The record reflects that complainant added the basis of color during
the investigation.
2 Complainant, on appeal, does not expressly contest the agency's
dismissal of claim (3); thus, we decline to address it herein. See EEOC
Management Directive 110, Chapter 9, � IV.A (November 9, 1999).
3 In a Grievant's Statement dated March 6, 2006, complainant asserts that
she received the February 24, 2006 Notice of Removal on February 26, 2006.
Assuming arguendo that complainant raised this initial Notice of Removal
in the EEO process, her initial EEO Counselor contact in 2007 would be
untimely.
4 Because we affirm, the agency's dismissal of claim (1) for the reasons
stated herein, we need not address the agency's alternate grounds for
dismissal or its finding of no discrimination on the merits.
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0120083952
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083952