0120083643
02-19-2009
Lisa Lucenti, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lisa Lucenti,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083643
Agency No. 4A100001108
DECISION
Complainant filed an appeal from the agency's final decision, dated July
24, 2008, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
BACKGROUND
During the relevant time, complainant worked as a City carrier at the
Lenox Hill Station of the New York post office.
As background to the instant matter, the record establishes that following
an absence due to foot surgery, complainant returned to full duty on
August 6, 2007. Soon after, complainant was sent home for delivering
mail without a uniform. Complainant saw her psychiatrist and returned
with a doctor's note stating that she needed an assignment in a "peaceful
environment" with limited mental stress, and was temporarily placed on
light duty boxing mail. On August 17, 2007 complainant went on limited
duty pursuant to her workers' compensation claim due to a recurrence
of a work-related injury, causing pain in her feet. The next day,
the Supervisor of Customer Services (hereinafter "supervisor") told
complainant that there was not a "peaceful work environment" in the New
York district and sent her home. She was instructed to call in each
morning to see if there was work. When her calls resulted in no work,
complainant filed complaints about being denied light/limited duty
work, which were settled in early October 2007. Per the settlement
terms, complainant was required to submit her request for light duty
to her supervisor, as well as a signed certification from her doctor.
After receiving her submissions, complainant's supervisor requested
clarification regarding the terms "heavy duty" and "peaceful work
environment." The events that followed are the subject of the instant
case.
On October 16, 2007, complainant's supervisor asked that the agency's
physician (hereinafter "Dr. C") speak with complainant's doctor.
Complainant agreed, and learned from her doctor that the necessary
clarification was provided, yet she was not returned to work. When
complainant went to her supervisor, he stated that he needed to speak
with Dr. C and told her to continue to call in each morning. Complainant
contends that her calls were met with various excuses for Dr. C's absences
(i.e. he was on vacation, too busy). On October 26, 2007, complainant
faxed Dr. C directly, and management arranged a meeting.
During the October 30, 2007 meeting, the supervisor referred to
a prior sexual harassment case, from 1992, and had complainant
sign documents stating that she was not being sexually harassed.
Complainant's supervisor also stated that he could not guarantee a
"peaceful work environment" because he could not control the behavior
of all employees. Complainant was instructed to return to work the
following day.
Believing that she was subjected to discrimination due to her sex, age,
disability1, and in reprisal for her prior EEO contact, complainant
contacted the EEO office. On January 11, 2008, complainant filed a
formal complaint. The agency framed the claims2 as follows:
(1) from on or about October 3, 2007, and continuing, complainant has
been subjected to hostile work environment harassment including but
not limited to verbal harassment from the supervisor and poor working
conditions; and,
(2) on or about October 31, 2007, complainant was charged Absent Without
Official Leave (AWOL).
Thereafter, complainant filed an amendment to her complainant, alleging
discrimination based on disability and reprisal for prior EEO activity
when:
(3) on or about March 19, 2008, complainant was issued a Notice of Seven
(7) Day Suspension.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged.
In its decision, the agency concluded that complainant failed to
establish a prima facie case of discrimination3. Nonetheless, assuming
that complainant had presented a prima facie case for each of the bases
raised, the agency determined that management proffered legitimate,
non-discriminatory reasons for its actions.
With respect to claim (1), the Customer Services Manager (hereinafter
"Manager") attested that when complainant continued to have problems with
noise and interactions with co-workers, after she was moved to a more
isolated location, he instructed her to fill out a light-duty request.
According to the agency, complainant "refused" to do so, and consequently
she was out of work for approximately four weeks. Further, management
explained that they did not understand what was meant by the terms
"peaceful work environment" and "no heavy duty" in the documentation from
complainant's doctor. In the end, stated the manager, he explained to
complainant that he could not guarantee a peaceful work environment,
but that she would be treated with respect. Complainant purportedly
agreed to come back.
Regarding the claim that complainant was subjected to verbal harassment,
the manager denied the allegation. Further, he claimed that he was
unaware of such conduct by any other individuals. According to the
manager, complainant never complained to him that his conduct was
unwelcome or offensive nor did she report the actions to anyone else.
As to claim (2), the manager explained that complainant was charged AWOL
because she was absent from work, did not call or provide documentation
to support her absence, did not abide by the rules for attendance, and
failed to follow the procedure for light duty. Complainant's immediate
supervisor attested that complainant was charged AWOL because she
refused to fill out a light duty request.4 According to the supervisor,
complainant simply was scheduled to report for duty and did not.
In claim (3), complainant believed she should not have been given the
notice of suspension because she had already been given a verbal warning
in February 2008, when she clocked-in early. A management official
observed that complainant had an unscheduled begin tour in the time and
attendance system. When she asked complainant who had given her approval,
complainant admitted that she did not have approval. The agency official
attested that she tried to conduct a pre-disciplinary interview with
complainant, but complainant refused to participate. Consequently, the
official forwarded the information to Labor Relations, which resulted
in the Notice of Seven Day Suspension.
Lastly, the agency concluded that the complainant failed to provide
any testimony indicating that the agency's reasons were pretext for
discrimination. Therefore, complainant did not meet her burden in
proving discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant disputes the agency officials' assertion that they
did not have work for complainant because she did not provide a request
for light duty. Specifically, she contends that while "cleaning out"
and reviewing her personnel file with a union steward, she discovered
the unopened envelope containing her request. Regarding the suspension,
complainant argues that a co-worker is permitted to clock-in "at all
different" times without being issued a 7-day suspension. Complainant
asserts that her supervisors talk behind her back, thereby creating a
pattern of ongoing harassment with new supervisors in the future.
In response, the agency reiterates the reasoning set forth in its decision
and asks that the Commission affirm its finding of no discrimination.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
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). He
must generally establish a prima facie case by demonstrating that
he 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).
Based on a review of the record, the Commission agrees that the
complainant has failed to meet her burden. While many of complainant's
perceptions of the relevant events mirror the descriptions contained
in the agency's decision, we do not find that she has established any
nexus between the agency's actions and her protected bases.
For example, in her affidavit, complainant attests that she was
instructed to call in every morning to find out if she could return
to work. According to complainant many of her calls went unanswered,
and when she did speak with her supervisor, she was told there was no
work for her. Further, she describes that back and forth that resulted
from her doctor's note, and the terms "peaceful work environment" and "no
heavy duty." As stated in the agency's decision, complainant notes that
her supervisor could not guarantee a peaceful work environment but she
was told to return to work. She attested that she was unfairly charged
with AWOL, since the absences were a result of the manager prohibiting
her return. Regarding the LOW, complainant believed that perhaps it was
done in an attempt to "give me a bad record so I can't get my transfer."
While it is clear that complainant believes the agency's actions are
unfair, and she disputes some of their reasons, complainant fails to
establish any link to her sex, age, disability or prior EEO activity.
Although complainant alleges, in claim (1), that she was subjected to
a hostile work environment, we do not find that her claim is supported
by the record. Complainant's own affidavit does not establish "poor
working conditions" or "verbal harassment."
Regarding claim (2), the AWOL charge, the agency contends that complainant
was scheduled to report for duty, between October 4, 2007 and October
31, 2007, and failed to do so. The agency stated that complainant did
not provide documentation to substantiate her absence. In an attempt to
establish pretext, complainant contends that she called each morning, but
often did not reach the manager. Further, as noted above, complainant
argues on appeal, that she did submit a request for light duty which
would have purportedly avoided the absences. Complainant's assertions
however, do not establish by a preponderance of the evidence, that
the agency's reason for issuing the AWOL was merely pretext to mask
discriminatory animus.
Finally, with respect to claim (3), the suspension, the record is
clear that complainant believes that because she was previously given
a verbal warning for the incident, she should not have been issued a
notice of suspension. However, the management official explained that
while she attempted to give complainant a pre-disciplinary interview,
complainant refused, and agency procedure resulted in the issuance of
the suspension a month later.
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
finding of no discrimination.
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
February 19, 2009
__________________
Date
1 Complainant asserts discrimination related to her mental condition.
The complaint is unrelated to her foot injury.
2 In the May 14, 2008 document accepting the claims for investigation,
the agency also dismissed two additional claims. Complainant alleged
that: prior to October 3, 2007, she was subjected to hostile work
environment harassment and that on December 14, 2007, she was issued
a Letter of Warning. The harassment claim was dismissed for untimely
counselor contact. The agency noted that since complainant entered into
a settlement agreement on October 3, 2007 she was obligated to raise
her claim of discrimination, regarding incidents transpiring before that
date, at that time. With respect to the LOW, the agency stated that it
was expunged from her records as a result of the grievance process, and
therefore the matter no longer stated a claim. Because complainant does
not challenge the dismissal of these claims on appeal, the Commission
shall not consider whether the agency's dismissal was proper.
3 The exception being claim (2), with respect to the basis of reprisal.
4 According to the agency, management is not permitted to find work
within an employee's restrictions without such a request.
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0120083643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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