0120171161
06-13-2016
Elenor S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elenor S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171161
Agency No. 1G761001916
DECISION
On February 7, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 17, 2017, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant based on her race, sex, color, disability, and in reprisal for prior EEO activity, when it issued her a notice of removal; denied her request for annual leave; and denied her request for a temporary change in her work schedule.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Handler at the Agency's Processing and Distribution Center in Fort Worth, Texas. Complainant reported to two supervisors, S1 (African American, female, Black, unspecified disability, unspecified EEO activity), and S2 (African American, male, Brown, unspecified disability, prior EEO activity).
On January 21, 2016, S1 issued Complainant a Notice of Removal for Failure to be Regular in Attendance/Absence Without Leave (AWOL). The notice specified that, since August 19, 2015, Complainant failed to report to work on 115 occasions, for a total of 901 hours of unscheduled leave. One investigative interview was held on September 18, 2015. Additional investigative interviews were scheduled, which Complainant did not attend. Complainant did not provide any documentation or explanation for her unscheduled absences. The Manager of Distribution Operations (MDO) (American, male, White, unspecified disability, unspecified EEO activity) reviewed and concurred with the removal. See Report of Investigation (ROI) at pgs. 15-17.
Complainant stated that she was absent because she had to care for her husband, who has a physical disability. She alleged that the Agency violated the Health Insurance Portability and Accountability Act (HIPAA) because her managers wanted Complainant to disclose private medical information. See ROI at pg. 5.
Complainant filed a grievance on her removal, and the parties entered into a settlement agreement on May 3, 2016. The Notice of Removal was reduced to a Letter of Warning, and Complainant returned to work on May 10, 2016. See ROI at pg. 220.
On May 15, 2016, Complainant requested annual leave for May 31, 2016. S2 denied her request, noting that she was needed as scheduled. See ROI at pg. 60. On May 19, 2016, Complainant requested a schedule change from June 17-19, 2016. She stated that the reason was "personal & private." S2 denied Complainant's request on May 20, 2016, again noting that she was needed as scheduled. See ROI at pg. 61.
On April 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (not specified), disability (not specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on January 21, 2016, S1 issued her a notice of removal for failure to be in regular attendance/AWOL;
2. on May 15, 2016, S2 denied her request for annual leave; and
3. on May 20, 2016, S2 denied her request for a change in work schedule.2
On May 17, 2016, the Agency dismissed Complainant's allegation that she was discriminated against when her HIPAA rights were violated on January 21, 2016. The Agency determined that this claim was beyond the purview of the EEO process, and was a collateral attack on another forum's proceeding. See ROI at pgs. 72-76. On June 10, 2016, Complainant was sent an affidavit request, and she requested an extension of time to provide her response. The investigator followed up with Complainant on July 5, 2016, and gave her a deadline of July 15, 2016. Complainant did not provide a response. See ROI at pgs. 86, 127-128.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission 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 the Agency subjected her to discrimination as alleged.
As an initial matter, the Agency endorsed and incorporated the dismissal of the HIPAA claim in its decision. For the remaining claims, the Agency noted that Complainant provided names of comparators who she alleged were treated more favorably, and outside of her protected groups. However, the Agency found that the comparators were not treated more favorably, or were not similarly situated because they had different supervisors.
The Agency then assumed, for the sake of argument, that Complainant had established prima facie cases of discrimination based on race, color, sex, disability, and in reprisal for EEO activity. It then found that the managers articulated legitimate, nondiscriminatory reasons for their actions. S1 and MDO decided to remove Complainant for her failure to be in regular attendance, and for her failure to provide adequate justification for her absences. S2 denied Complainant's request for leave because the office had reached the maximum number of employees signed up for leave that week. S2 also denied Complainant's request for a temporary schedule change because they needed people to work overtime due to the volume of work and staffing constraints. The Agency found that Complainant had not shown pretext for discrimination, and concluded that Complainant had not proven that it discriminated against her.
Complainant filed the instant appeal, but did not provide a brief in support of her appeal. The Agency requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Dismissed Claim
With regard to Complainant's dismissed claim on the alleged violation of the HIPAA law, the Commission has previously determined that matters concerning HIPAA and the Privacy Act are not within the regulations enforced by the Commission. See Grove v. U.S. Postal Service, EEOC Appeal No. 0120110456 (Jan. 5, 2012); Price v. U.S. Postal Service, EEOC Appeal No. 0120111033 (Dec. 8. 2011); Scott v. U.S. Postal Service, EEOC Appeal No. 0120101539 (Aug. 13. 2010); Cromer v. U.S. Postal Service, EEOC Appeal No. 0120083518 (Apr. 22, 2010). The EEO process is not the proper forum to raise such violations, and accordingly, we affirm the Agency's dismissal of this claim.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-16 (1983).
Assuming, arguendo, that Complainant established prima facie cases of discrimination based on race, sex, color, disability and in reprisal for prior EEO activity, we find that the managers proffered legitimate, nondiscriminatory reasons for their actions. For claim 1, S1 stated that Complainant failed to report to work on 115 difference occasions, and did not provide acceptable documentation for her absences. See ROI at pg. 134. MDO stated that he concurred with S1's request for Complainant's removal due to her absences, her failure to keep her supervisors aware of her status, and her failure to provide acceptable documentation for her absences. See ROI at pgs. 257-258.
With regard to claim 2, S2 stated that he denied Complainant's leave request because she did not provide a reason for her request and they were at the maximum allotment of employees on leave that week, which happened to follow a holiday. Complainant was needed to work, as scheduled. See ROI at pg. 237. For claim 3, S2 stated that he denied Complainant's request to change her schedule because she was needed as scheduled. S2 added that, due to the volume of work, Complainant's requested day off was one on which they brought in employees who were normally off duty to work overtime. See ROI at pgs. 239-240.
Complainant can establish pretext in two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. In this case, Complainant has not provided any evidence showing that the managers' legitimate, nondiscriminatory reasons were pretexts for discrimination. Accordingly, we find that the Agency did not discriminate against Complainant based on her race, sex, color, disability, or in reprisal for her prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant has not shown that she was discriminated against based on her race, sex, color, disability, or in reprisal for her prior EEO activity when the Agency issued her a notice of removal, denied her annual leave request, and denied her temporary request to change her work schedule.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Claims 2 and 3 were added to the instant complaint on June 13, 2016. See ROI at pgs. 77-80.
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