Manjit Sandhanwalia, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service,) Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01970246 (E.E.O.C. Oct. 14, 1999)

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).