0120140405
05-18-2016
Leatrice B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leatrice B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120140405
Agency No. 4G320022412
DECISION
On October 22, 2013, Complainant filed an appeal from the Agency's October 7, 2013, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the basis of reprisal for prior EEO activity when:
1. On September 4, November 1, 9, and 10, 2012, it denied her leave requests;
2. On September 21, 2012, it issued her a 7-day suspension;
3. On unspecified dates, it required Complainant to submit documents to excuse her absences; and
4. On April 29, 2013, it charged her Leave Without Pay (LWOP).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Niceville Post Office in Niceville, Florida. On August 29, 2012, Complainant texted her supervisor (S1) to inform her that she would be taking annual leave (AL) on September 4, 2012, to drop her son off to start his military service. S1 denied her request because two carriers were already scheduled to be on leave September 4, 2012, and she already denied leave to another carrier (C1). On August 31, 2012, the Postmaster (PM) spoke with Complainant's union representative and asked him to relay to Complainant that she was approving one hour of leave, and that Complainant needed to provide documentation regarding the time and location of her son's duty to report. Later that afternoon, S1 called PM and informed her that C1 came to her upset that his leave request was denied because Complainant's leave request was approved.
On September 1, 2012, a certified letter was delivered to Complainant's residence notifying her that she was only granted one hour of leave on September 4, 2012, and that she needed to provide documentation. On September 4, 2012, Complainant came to work late and was charged 2.01 hours of absence without leave (AWOL). On September 5, 2012, S1 conducted a fact-finding interview with Complainant, who stated that she did not receive the letter and when asked about the document requested, she replied that S1 "do[es] not get that," and that S1 was "crossing the lines when you ask for my personal information."
On September 21, 2012, S1 issued Complainant a 7-day suspension for Failure to Follow Instructions and Unauthorized Absence - AWOL for September 4, 2012.2 S1 noted that Complainant did not bring in documentation, as required; did not report in, as required, on September 4, 2012; and did not call in to inform anyone that she would not be reporting in as required.
Complainant requested AL on November 9, and 10, 2012, which were denied. S1 denied Complainant's leave request for November 9, 2012, stating that four carriers were already scheduled to be on leave that day. PM denied Complainant's request for leave on November 10, 2010, due to the maximum number of carriers already scheduled for leave.
On an unspecified date, Complainant provided a note from her doctor, excusing her from work. PM informed Complainant that the document was not sufficient, and requested that she provide acceptable documentation. The record contains a note from Bluewater Orthopedics dated November 26, 2012, which states, "[Complainant] is under medical treatment," excusing her from work on that date.
On April 29, 2013, Complainant came to work and informed S1 that she needed to take her son to the emergency room. Another supervisor (S2) reminded Complainant that she needed to submit her leave request form, but Complainant did not submit a leave request form until May 6, 2013. Since the pay period closed prior to Complainant submitting her leave request, she was marked as LWOP for April 29, 2013.3
On January 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal (EEO complaint filed December 2, 2010) under Title VII of the Civil Rights Act of 1964 when:
1. On September 4, November 1, 9, and 10, 2012, it denied her leave requests;
2. On September 21, 2012, it issued her a 7-day suspension;
3. On unspecified dates, it required Complainant to submit documents to excuse her absences; and
4. On April 29, 2013, it charged her LWOP.4
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. 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.
The Agency found that Complainant had not established a prima facie case of reprisal discrimination because she had not shown a causal connection between her prior EEO activity and the alleged discriminatory actions. Complainant's most recent EEO case closed on April 25, 2011, which was more than a year prior to the complained of conduct. Additionally, the Agency determined that Complainant had not shown any evidence demonstrating a link between her prior EEO activity and the actions, nor provided appropriate comparators who had no prior EEO activity and were treated more favorably. While Complainant named some comparators, the Agency found that they were either not outside Complainant's protected class; not similarly situated; or not treated more favorably than Complainant.
However, the Agency assumed that Complainant had established a prima facie case of reprisal discrimination and found that the Agency articulated legitimate, non-discriminatory reasons for its actions. S1 and PM stated that they denied Complainant's requests for leave on September 4, November 9, and November 10, 2012, because there were other employees already scheduled for leave on those dates. They also both stated that Complainant did not request leave for November 1, 2012.
In regards to Complainant's suspension, S1 stated that Complainant did not come into work on time on September 4, 2012, or provide the requested documentation, as required. PM stated that she concurred with the suspension because Complainant did not follow instructions and was AWOL.
PM stated that Complainant provided a note from her doctor but that it was not acceptable, in accordance with Agency's policy. Specifically, PM stated that a note stating, "under my care" is not sufficient. For Complainant's LWOP claim, S2 stated that Complainant refused to submit her leave request form in advance, or after she returned to duty. The record shows that Complainant submitted her leave request form on May 6, 2013, which S2 denied for being untimely since the pay period had already closed.
The Agency found that Complainant did not provide any evidence that the Agency's proffered reasons were pretext for discrimination. Accordingly, it concluded that Complainant had not shown that the Agency discriminated against her on the basis of reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the EEO investigator did not ask her or her representative "a single question." Complainant also argues that the investigator took PM and S1's word, and that she provided evidence.
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").
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, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
As an initial matter, the record shows that the EEO investigator provided Complainant with questions for her complaint and that she returned the documents. However, Complainant only answered 20 out of the 50 questions in her initial affidavit, and signed the bottom of each page. Some of the pages were left blank as Complainant did not answer any of the questions listed.
Assuming, arguendo, that Complainant had established a prima facie case of reprisal discrimination based on her prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. PM and S1 denied Complainant's requests for leave on September 4, November 9, and November 10, 2012 because other carriers were already scheduled for leave on those dates. The record shows that PM and S1 also denied leave requests for other carriers for the same reason around the same time as Complainant's requests. Additionally, PM and S1 stated that Complainant did not request leave for November 1, 2012, and the record does not support that she submitted a request.
For Complainant's suspension, PM and S1 stated that Complainant failed to follow instructions when she did not report to work on time; call to say that she was unable to report to work on time; or provide the required documentation on September 4, 2012. Complainant argued that she did not receive the letter; however, the record shows that it was delivered on September 1, 2012, and signed for by her son. Additionally, when Complainant was asked about providing the requested documentation, she stated that she would not do so.
In regards to Complainant's allegation that she was discriminated against when she was required to provide documentation to excuse her absence from work, PM stated that when she saw the medical note that Complainant provided, she deemed it to be unacceptable, per the Employee and Labor Relations Manual (ELM). The record contains a copy of the policy, which states, "[n]ormally, medical statements such as 'under my care' or 'received treatment' are not acceptable evidence of incapacitation to perform duties."5
For Complainant's allegation that she was discriminated against when the Agency charged her LWOP on April 29, 2013, S2 stated that despite his repeated reminders for Complainant to submit her leave request form, she did not do so until after the relevant pay period closed. He stated that he provided copies of the leave policy and a completed form to sign, but that Complainant refused to sign it because she disagreed that her absence was unscheduled.
While Complainant provides what she describes as "evidence" in support of her allegations, we find that her own notes are bare assertions, which are insufficient to prove pretext or that her managers' actions were discriminatory. Accordingly, we find that Complainant has not shown that she was discriminated against on the basis of reprisal for filing her prior EEO complaint when the Agency denied her leave requests on September 4, November 1, 9, and 10, 2012; issued a 7-day suspension; requested additional medical documentation; and charged her LWOP on April 29, 2013.
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 had not shown that the Agency discriminated against her on the basis of reprisal for prior EEO activity when it denied her requests for leave; issued her a 7-day suspension; requested documentation to support her absences; and charged her LWOP.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
__5/18/16________________
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 The suspension was reduced to a Letter of Warning on November 15, 2012, as a resolution to Complainant's grievance.
3 This issue was also settled through a union grievance to change Complainant's LWOP to paid leave.
4 Complainant also alleged a hostile work environment but the Agency dismissed that claim because it found that the few incidents that Complainant alleged were harassment did not rise to the level of a hostile work environment.
5 ELM section 513.364 Medical Documentation or Other Acceptable Evidence.
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