01970246
10-14-1999
Manjit Sandhanwalia, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Manjit Sandhanwalia v. United States Postal Service
01970246
October 14, 1999
Manjit Sandhanwalia, )
Appellant, )
)
v. ) Appeal No. 01970246
) Agency No. 4F-945-1070-96
William J. Henderson, )
Postmaster General, )
United States Postal Service,)
Agency. )
)
DECISION
On October 8, 1996, the appellant initiated an appeal from a final
decision of the agency dated September 13, 1996 concerning her complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is timely (see 29 C.F.R. �1614.402), and is accepted under
29 C.F.R. �1614.401.
ISSUE PRESENTED
Whether the appellant was discriminated against on the bases of her
race (Asian), national origin (India), and sex (female) when she was
allegedly verbally harassed and physically threatened by her supervisor
on November 2, 1995, was placed on administrative leave the next day,
and was issued a notice of removal in December 1995.
BACKGROUND
The appellant filed an EEO complaint alleging the above issue.<1> At the
time, she was a Distribution Clerk, PS-5, with no veterans preference,
at the Vallejo Main Post Office in Vallejo, California. Following
an investigation, the agency notified the appellant of her right to
request a hearing before an Equal Employment Opportunity Commission
Administrative Judge, and she requested a decision without a hearing.
The final agency decision found no discrimination. The appellant then
filed the instant appeal.
In December 1995, the appellant's supervisor, Supervisor 1 issued her
a notice of removal under charges of unacceptable conduct, aggressive
physical contact with a postal supervisor, and insubordination.
In support of the charges, the notice recounted the following.
On November 2, 1995, the appellant was walking through the carrier unit
when Employee 1 asked if she knew where Employee 1's supervisor was
because she wanted to take a lunch break. The appellant told Employee 1
to just leave and take her lunch break. Upon hearing this, Supervisors
2 (African American, female) and 3 (male) said "No, no, no, she can't
do that," but the appellant continued walking and called back "Yes,
yes, yes." Supervisor 2 called out three times to the appellant to get
her attention, but each time she threw up her hands and kept walking.
The notice continued that Supervisor 2 caught up with the appellant
before she got out of the carrier unit, and the appellant turned
around in an apparent rage, put her hand on Supervisor 2's chest, and
leaned her body against Supervisor 2. The appellant then pointed her
finger in Supervisor 2's face, raised her voice, gritted her teeth,
and said "you tell them what to do (pointing to the carriers), not me.
You don't say anything to me." When Supervisor 2 gave the appellant
direct instructions to go to the supervisor's office, the appellant
replied in a threatening manner "don't talk to me, I'm going on break,
see my supervisor." When the appellant started to walk away, Supervisor
2 followed, again instructing her to report to the supervisor's office.
The appellant replied "you don't have any business saying anything to
me, see [my supervisor]." Supervisor 2 made a statement corroborating
the above account.
Supervisor 1 stated that a day after the incident, she participated in
an interview of the appellant. Supervisor 1 wrote that the appellant
was asked why she behaved in a threatening manner by placing her hand
on Supervisor 2's chest, pointing her finger in her face and leaning
forward towards her, and replied that she may have touched Supervisor
2 but was not sure, and noted Supervisor 2 was yelling and pointing her
finger at the appellant.
The appellant's version of events were consistent with Supervisor
2's account in some aspects, but different in important respects.
The appellant stated that when she made her comment about lunch to
Employee 1, she was joking and Employee 1 understood this since they
both knew that Employee 1's work area was not to be left unattended.
The appellant contended that when Supervisor 2 said "no, no, no" and
she said "yes, yes, yes," she thought it was understood they were both
joking because both were smiling. The appellant contended that she
told Supervisor 2 she was just joking when Supervisor 2 came to her,
but Supervisor 2 said go into a room because she was going to write up
the appellant.
The appellant said she told Supervisor 2 that she was going to the
bathroom and on break, and thereafter would talk. The appellant
indicated that this evoked an angry response by Supervisor 2, who said
she was the supervisor and you are not going on break or to the bathroom.
According to the appellant, she then said "let me talk to my supervisor"
and Supervisor 2 angrily replied "no, I am the supervisor," and followed
her into the bathroom. The appellant indicated that Supervisor 2 started
waiting outside the bathroom, and when the appellant emerged Supervisor 2
pointed her finger at the appellant and yelled at her to go to the room.
The appellant strongly denied that she touched Supervisor 2.
The appellant indicated there were eight witnesses to the incident.
She submitted statements by six of them. It appears some were originally
part of a management investigation of the incident. Employees 1 and 2
stated that the appellant was joking when she told Employee 1 to go to
lunch and said "yes, yes, yes." Employee 2 stated that the appellant
stopped walking when told that Supervisor 2 was calling out.
Employees 2, 3, and 4 stated they did not see the appellant touch
Supervisor 2. At the location where Supervisor 2 said contact occurred,
Employees 2 and 3 said they saw Supervisor 2 pointing at the appellant.
Employee 2 wrote she was not paying attention to the conversation and
Supervisor 2 was talking loudly. Employee 4 did not state at what point
he started witnessing the incident.
Employee 3 stated that the appellant told Supervisor 2 she had to go to
the bathroom and would talk after the break, and Supervisor 2 replied
if the appellant did not come now, she would be written up. Employee 4
stated Supervisor 2 kept telling the appellant she needed her to do
something now, who continued to reply after her break. Witnesses indicate
that Supervisor 2 spoke loudly when she called out for the appellant
and loudly and in an authoritative tone in their subsequent exchanges
during this incident.
In her request for the appellant to be removed, Supervisor 2 stated
the appellant was hostile and out of control, that the appellant made
clear on previous occasions she would not follow any of Supervisor 2's
instructions, and the appellant went out of her way to show disrespect
toward Supervisor 2. Supervisor 2 wrote that she considered the
appellant's actions to be a direct assault upon her, and did not want
the matter to escalate. Supervisor 1 wrote that after the appellant
was interviewed about the incident on November 3, 1995, she was placed
on administrative leave. Supervisor 1 recommended the appellant be
removed because she physically assaulted Supervisor 2. In making the
recommendation, Supervisor 1 wrote that while the appellant did not have
prior discipline, she had a history of being aggressive in conduct.
Supervisor 2 stated that Comparison 1 (Filipino male), Comparison
2 (Hispanic male) and Comparison 3 (African American male), while
under her supervision in 1995, were each issued 10 day suspensions.
Comparisons 1 and 3 were charged with failure to follow instructions
and conduct unbecoming a postal employee, and Comparison 2 was charged
with conduct unbecoming a postal employee and irregular attendance.
Supervisor 2 indicated that while these comparisons displayed conduct
unbecoming a postal employee, none engaged in physical contact.
The appellant filed a grievance regarding her removal. In February 1996,
the grievance was settled by reducing the removal to a 30 day suspension.
In the instant appeal, the appellant argues the merits of her EEO
case and states she was discriminated against. She also argues that
the EEO investigator did not conduct a proper investigation because
affidavits were not taken from the people who witnessed the November 2,
1995 incident. In response to the appellant's appeal, the agency argues
that the EEO investigation was sufficient and its final decision should
be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, we find the EEO investigation was sufficient.
While the EEO investigator did not take affidavits from the people who
witnessed the November 2, 1995 incident, the investigative record contains
statements regarding the incident from six of the eight witnesses the
appellant identified.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. McDonnell Douglas requires the
appellant to first establish a prima facie case. If the appellant
succeeds, the agency's burden then is to articulate some legitimate,
nondiscriminatory reason for its action in order to rebut the prima facie
case of discrimination. Finally, the appellant has the opportunity
to show, by a preponderance of the evidence, that the agency's stated
reason is a pretext for discrimination. The ultimate burden of proof
that discrimination took place is on the appellant. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Since the agency articulated legitimate, nondiscriminatory reasons for
the alleged discriminatory actions, as set forth below, we may proceed
directly to whether she demonstrated by a preponderance of the evidence
that the agency's reasons were merely pretexts to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The agency explained that Supervisor 2 did not harass the appellant,
rather, she was reacting to the appellant's insubordination. The agency
explained that it placed the appellant on administrative leave pending the
investigation of the incident, and removed her for the reasons charged.
The appellant avers that these reasons were a pretext to mask
discrimination. In sum, she argues that Supervisor 2 was the provocateur
who acted inappropriately, not her, that she did not touch Supervisor 2,
and that she was treated more harshly than Comparisons 1, 2, and 3.
We find that the appellant has failed to establish pretext. While we find
the weight of the evidence shows the appellant was joking with Employee
1 about taking lunch, and that Supervisor 2 was overly defensive and
publicly assertive about her authority, the evidence also shows that
the appellant engaged in actions which transformed the situation.
By ignoring Supervisor 2's calls until Employee 1 intervened, and
insisting that she would not talk to Supervisor 2 or go along with her
until the appellant finished her break, the appellant publically flouted
Supervisor 2's authority.
There is a dispute as to whether the appellant put her hand on Supervisor
2's chest, the primary reason for the administrative leave and notice
of removal. The statements of Supervisor 2 and the appellant contradict
each other. Supervisor 1 stated that in an interview of the appellant
the day after the incident, the appellant she acknowledged she may have
touched Supervisor 2, but was not sure. At the location where the alleged
physical contact occurred, Employees 2 and 3 stated they saw Supervisor 2
pointing her finger at the appellant and did not witness contact between
them. However, Employee 2 stated she was not paying attention to the
conversation between Supervisor 2 and the appellant, and it is not clear
to what extent she was watching their physical gestures. Further, based
on Employee 2 and 3's statements, we are unable to discern whether they
were positioned so that they could see all of the appellant's gestures.
The burden to prove pretext is on the appellant, and we find that she
has not shown Supervisor 2 falsely stated the appellant put her hand
on Supervisor 2. The appellant has failed to show she was disparately
treated, or to otherwise establish discrimination.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the appellant was not discriminated
against with regard to the above issues.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 14, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The appellant did not allege sex discrimination prior to her appeal.
However, as there is sufficient information in the record to address the
basis of sex discrimination, we will do so here. Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970).