0120083937
06-09-2010
Linette Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Linette Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120083937
Hearing No. 470200700189X
Agency No. 4J460002107
DECISION
On September 13, 2008, complainant filed an appeal from the agency's
August 8, 2008 final order 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. 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
order.
ISSUE PRESENTED
Whether substantial evidence in the record supports the AJ's finding that
the agency did not discriminated against complainant based on her race,
sex, and disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Supervisor of Customer Services at the agency's Whiting
postal facility in Whiting, Indiana. Complainant was hired by the
Postmaster (P1) for the position. Complainant was the only supervisor
at the Whiting facility. On July 7, 2006, complainant requested leave
under the Family and Medical Leave Act (FMLA). On July 24, 2006, the
FMLA coordinator (A1) by letter informed complainant that her medical
information was incomplete for her FMLA leave request. On August 22,
2006, after receiving additional documentation from complainant's doctor,
A1 approved complainant's FMLA leave request.
On August 23, 2006, P1 changed complainant's Leave Without Pay (LWOP) and
her Absence Without Leave (AWOL) status consistent with the approval of
her FMLA sick leave. On January 18, 2007, complainant provided medical
documentation from her doctor requesting FMLA leave from January 18-22,
2007. A1 denied complainant's request because she did not meet the
statutory requirement of having worked 1,250 hours during the previous 12
months prior to making her leave request; instead, complainant only had
982 work hours. Also, complainant maintained that her non-scheduled work
days were Saturdays and Sundays. Conversely, P1 stated that complainant's
non-scheduled work days were Wednesdays and Sundays. From June 11,
2005, through January 20, 2006, complainant worked a schedule with
Wednesdays and Sundays as her non-scheduled work days. However, from
January 20 to July 7, 2006, she, at times, was scheduled with Saturdays
as a non-scheduled work day. Finally, on January 25, 2007, P1 changed
complainant's work hours from 8:00 a.m. through 5:00 p.m. to a shift of
9:00 a.m. through 6:00 p.m.
On June 21, 2007, complainant filed an EEO complaint alleging that she was
discriminated against based on harassment on the bases of race (Black),
sex (female), and disability (Nodular Scleritis and Stress) when:
1. she was paid improperly from June 30, 2006 to September 8, 2006,
when P1 refused to honor her FMLA documentation;
2. the reports and documents submitted by her doctor were not honored
by P1;
3. P1 changed her non-scheduled days on December 22, 2006; and
4. P1 changed her work hours on January 25, 2007.
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). Complainant timely
requested a hearing and the AJ held a hearing on July 8-9, 2008 and
issued a decision on August 5, 2008. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
Specifically, the AJ found that complainant was an individual with
a disability based on her stress-related symptoms. However, the AJ
found that complainant was not an individual with a disability based
on Nodular Scleritis. In this regard, the AJ found that complainant was
not substantially limited in any major life activity in regard to this
condition. Also, for the purposes of his decision the AJ assumed that
complainant was a "qualified" individual with a disability.
The AJ also found that the Commission was without jurisdiction to address
the merits of the decisions made under FMLA. In regards to claim (1),
the AJ found that P1 honored the decisions made by A1. The AJ found that
P1 allowed the FMLA decision process to run its course. The AJ further
found that P1 properly applied agency policies regarding the recording
of absences as to annual leave, sick leave, LWOP, and AWOL. Also,
the AJ found that the day after A1 approved complainant's FMLA leave,
P1 made appropriate adjustments to her leave.
In regards to claim (2), the AJ found that it was A1 who was responsible
for processing complainant's medical documentation, not her supervisor. In
this regard, the AJ found that A1 handled complainant's medical
documentation properly regarding her FMLA leave. As to claim (3),
the AJ found that complainant's non-scheduled days were Wednesdays and
Sundays and not Saturdays and Sundays as complainant alleged. The AJ
found that this was substantiated by the fact that complainant worked
the first thirty-two weeks without objection with the non-scheduled days
of Wednesdays and Sundays.
Regarding claim (4), the AJ found that the agency articulated a legitimate
nondiscriminatory reason for its actions. In particular, the AJ found
that complainant's schedule was changed because the station needed a
supervisor present for the carriers who returned to the station late from
their carrier routes. The AJ found that complainant failed to establish
evidence of pretext for this nondiscriminatory reason.
The AJ also noted that it was P1 that hired complainant for the position
in Whiting in 2005, and she was aware of her race and gender. As such,
the AJ noted that it was unlikely that a year later P1 would have
discriminatory animus towards complainant's race and gender. Lastly,
the AJ determined that the agency's actions towards complainant were
not sufficiently severe or pervasive enough to constitute as actionable
harassment.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when he failed to order
additional discovery regarding: (1) her medical diagnosis and treatment
for Nodular Scleritis; (2) P1's official time and attendance records,
schedule, detail assignments, performance evaluations, and duties;
and (3) comparative data, statistics, or affidavits. In this regard,
complainant contends that the AJ should have ordered an additional
investigation. Complainant contends that she was denied the benefit of
an adverse inference against the agency because the agency failed to
produce FMLA records and other documentation.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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, 143 (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).
In this instant matter, we assume arguendo that complainant is an
individual with a disability and established a prima facie case of sex,
race, and disability discrimination. However, we find substantial evidence
in the record to support the AJ's finding that complainant failed to
demonstrate that the agency's actions were based on discriminatory
animus. Additionally, we find that there is substantial evidence in the
record to support the AJ's finding that complainant failed to demonstrate
that the agency's proffered explanations for its actions were false and
in fact a pretext for discrimination.
Regarding claim (1), we concur with the AJ that after complainant
submitted the correct complete documentation for her FMLA leave, P1
adjusted complainant leave records reflecting the fact that complainant's
FMLA leave was approved. Complainant's Time and Attendance Control System
(TACS) records indicate that complainant's time records were adjusted and
she was paid for those days covered under FMLA. Moreover, we find that
there is substantial evidence to support the AJ's determination that the
delay in approving complainant's FMLA leave was caused by complainant's
failure to submit complete medical documentation.
Regarding claim (2), we concur with the AJ that the agency properly
honored complainant's FMLA leave documentation. In this regard, we find
no evidence that P1 did not appropriately forward complainant's FMLA
leave documentation to A1. Also, TACS records establish that A1 properly
honored complainant's FMLA leave documentation. A1 provided complainant
with 176 hours of FMLA leave from July 14, 2006 to September 8, 2006.
As to claim (3), we concur with the AJ that complainant was hired with the
non-scheduled work days of Sundays and Wednesdays. This is substantiated
by the fact that when complainant first started in her position at the
Whiting station, Wednesdays and Sundays were her non-scheduled work
days. Also, since complainant was the only supervisor at the Whiting
facility, the agency needed a supervisor present on Saturdays since
P1 was off on Saturdays. We note that from January 20 to July 7, 2006,
complainant, at times, had Saturdays off. In this respect, complainant,
while P1 was on detail in another assignment, took over temporarily as
the postmaster. Another employee was working in complainant's place on
Saturdays temporarily; however, later the agency requested that complaint
return to working on Saturdays.
Regarding claim (4), we concur with the AJ that the agency articulated
a legitimate nondiscriminatory reason for its actions; namely, that
complainant's schedule was changed because the postal station needed a
supervisor present for the carriers who returned to the station late from
their carrier routes. The record reflects that, at the time, the postal
facility was short staffed with carriers, and carriers were returning
from their shifts later; and as a result, a supervisor was needed at
the postal facility later than usual.
Also, to the extent that complainant is alleging that she was subjected
to a hostile work environment, we concur with the AJ that under the
standards set forth in Harris v. Fork-lift Systems, Inc., 510 U.S. 17
(1993) that complainant's claim of hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994). A finding that complainant was subjected
to a hostile work environment is precluded by our determination that
complainant failed to establish that any of the actions taken by the
agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Lastly, we note that on appeal complainant contends the AJ erred by not
ordering additional discovery pertaining to her medical diagnosis and
treatment for Nodular Scleritis. As noted above, for purposes of this
decision, we assumed arguendo that complainant was an individual with
a disability with Nodular Scleritis; therefore, we find that additional
discovery relating to her disability would not have changed our finding
here. On appeal, complainant also contends that the AJ should have
ordered additional discovery pertaining to, among other things, P1's
official time and attendance records and other documentation relevant to
this case. There is nothing in the record to indicate that complainant
requested that the AJ order additional discovery. Furthermore, the
record indicates that complainant did not request any documents from the
agency through discovery.1 An AJ has broad discretion in the conduct
of a hearing, including matters such as discovery orders, scheduling,
and witness selection. See 29 C.F.R. � 1614.109(e). Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000). Based on our review
of the record, notwithstanding complainant's contentions on appeal to
the contrary, we find no evidence that the AJ abused her discretion in
conducting the hearing in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to prove by the preponderance of the evidence that
he was discriminated against as alleged. Accordingly, the final agency
order is AFFIRMED.
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 During the hearing, the Agency Representative stated to the AJ,
"Judge [complainant] had an opportunity to conduct discovery in this
case. She did not conduct any discovery, notice up any depositions;
ask for any interrogatories, or document requests." Hearing Transcript
at 578. Consequently, we do not find that taking an adverse inference
against the agency would be appropriate.
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0120083937
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083937