01a41383
07-28-2005
Helena Roura, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helena Roura v. United States Postal Service
01A41383
July 28, 2005
.
Helena Roura,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41383
Agency No. 4A-117-0014-01
Hearing No. 160-A2-8479X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Window
Clerk at the agency's Smithtown Post Office in Smithtown, New York.
Complainant filed a formal complaint on March 10, 2001. Therein,
complainant claimed that she was discriminated against on the bases
of national origin (Hispanic), sex (female), disability (post traumatic
stress disorder/depression), and in reprisal for prior EEO activity when:
she was issued a Notice of Removal dated September 20, 2000.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing but subsequently withdrew the request in favor of
a FAD.
In its November 20, 2003 FAD, the agency found no discrimination.
The agency determined that complainant failed to establish a prima facie
case of disparate treatment national origin and sex discrimination.
The agency found that assuming complainant established a prima facie
case of disparate treatment, agency management articulated legitimate,
nondiscriminatory reasons for its action which complainant failed to
show were a pretext for discrimination.
As to complainant's disability claim, the agency determined that
complainant failed to establish a prima facie case of disability
discrimination. Specifically, the agency found that complainant
did not proffer sufficient evidence to show that she was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
The agency found that while complainant had a mental impairment, there
was no record that complainant's post traumatic stress disorder/depression
substantially limited any of her major life activities.
Further, the agency concluded that even if complainant was able to prove
she was a qualified individual with a disability, agency management
nevertheless articulated a legitimate, nondiscriminatory reason for
removing complainant from agency employment.
As to complainant's reprisal claim, the agency determined that complainant
failed to establish a prima facie case of reprisal discrimination because
she failed to establish a casual connection between her prior EEO activity
and the action at issue.
On appeal, complainant contends that she was subjected to a hostile work
environment and sexual harassment by Smithtown Post Office management.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination.<1> See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record supports a determination that the agency articulated
legitimate, non-discriminatory reasons for its employment actions.
Specifically, the record supports a finding that complainant was
terminated for being continuously absent without leave and based on her
failure to follow instructions.
The record contains a copy of the affidavit of complainant's Supervisor.
Therein, the Supervisor stated that on September 20, 2000, she issued
complainant a Notice of Removal for her continuous absences without
leave, and her failure to submit acceptable evidence to substantiate
her need for the absences. The Supervisor stated that complainant
was charged with continuous absence without leave from August 4,
2000 until September 20, 2000. The Supervisor stated "I wrote to
[Complainant] requesting that she submit substantiating documentation
for her absences and contact me to schedule an interview to discuss her
continuous absences." The Supervisor stated that complainant failed to
comply with any of her requests. The Supervisor stated further that on
September 13, 2000, she sent another letter to complainant informing her
"that, as her immediate supervisor who is responsible for approving or
disapproving leave requests, I would continue to disapprove her absences
because she has failed to submit acceptable evidence to substantiate
her absences." Furthermore, the record reflects that the Supervisor
considered the following elements of complainant's past record in the
determination to issue her a Notice of Removal: complainant was issued a
7-day Suspension dated March 10, 1999, for failure to follow instructions;
was issued a 14-day suspension dated November 12, 1999, for failure
to follow instructions, failure to perform duties of a Window Clerk,
and disrespect to her supervisor; and was issued a Letter of Warning
dated January 14, 2000, for failure to be regular in attendance.
The record also contains an affidavit from the Postmaster. Therein,
the Postmaster stated that he concurred with the Notice of Removal
based on complainant's continuing absence and her failure to submit
documentation to her Supervisor. The Postmaster stated that he was aware
of complainant's work history and the history of corrective action taken
to correct her performance. The Postmaster stated further that in August
2000, the Supervisor informed him that complainant was upset because she
was no longer eligible for the Family Medical Leave Act because she did
not meet the requirements. The Postmaster further stated that another
Supervisor informed him that "upon learning she was no longer 'covered,'
the complainant stated to [the named Supervisor] that if 'you are going
to play that game,' then she would have to 'play it too.'" Furthermore,
the Postmaster stated that he did not discriminate against complainant
based on her national origin, sex, disability or prior protected activity.
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
Finally, we note that complainant, on appeal, raises new claims of a
hostile work environment and sexual harassment. We note that these claims
were not previously raised. It is inappropriate for complainant to raise
these new claims for the first time as part of her December 2003 appeal.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 28, 2005
__________________
Date
1The Commission presumes for purposes of
analysis only and without so finding, that complainant is a qualified
individual with a disability.