0120080165
05-08-2009
Maureen Kelly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maureen Kelly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080165
Agency No. 4H-327-0072-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 17, 2007, 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., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
her on the bases of race (Caucasian), national origin (Irish-Italian),
color (white), and age (52) when: (1) on February 26, 2007, she was
placed on Emergency Placement in Off-Duty Status; and (2) on March 30,
2007, she was issued a Notice of Removal.
The record reveals that complainant was employed as a City Letter Carrier
at the West Palm Beach Gardens facility, Florida. On February 15, 2007,
complainant became upset with the actions of a coworker that she had had
an on-going dispute with and loudly complained about the situation on
the workroom floor. Complainant had previously complained to management
about the coworker's actions but maintains that nothing was ever done.
An employee who witnessed complainant's reaction on the workroom
floor told management that she had heard complainant say that she
would "put a bullet in [the coworker's] head." This information was
forwarded to the Postal Inspection Service and it was discovered that
complainant was licensed to carry a concealed weapon. The Manager then
directed that complainant be kept off-premises until an investigation
could be completed. Interviews of seventeen employees revealed that
complainant had had problems with other employees, that she was abusive
and had intentionally struck several employees with her mail hamper.
On February 26, 2007, complainant was given notice of her Emergency
Placement in Off-Duty Status. Complainant acknowledged having a
problem with the specific coworker but did not recall making any threats.
On March 30, 3007, complainant was issued a Notice of Removal and charged
with improper conduct. She was also charged with violating the "Zero
Tolerance Policy." The agency found that complainant failed to show
that the agency's reasons were pretext for discrimination.
Following an investigation by the agency, complainant requested a final
agency decision (FAD) from the agency. The agency initially dismissed
complainant's complaint as moot, as the matter had been resolved in
the grievance process. The agency then indicated in the alternative
that assuming arguendo that complainant established a prima facie
case of discrimination as to all bases, the agency had articulated a
legitimate nondiscriminatory reason for its actions. Specifically, the
agency maintained that complainant was placed in Off-Duty status and was
ultimately issued a Notice of Removal because she made a threat against
a coworker, was licensed to carry a weapon and had violated the Zero
Tolerance Policy. The agency explained that based on the information
that they had available to them, they acted in order to protect the
workplace and safeguard other employees.
On appeal, complainant contends that the matter should not have been found
to be moot. Complainant also contends that her complaints regarding the
coworker repeatedly went unanswered while the complaint against her was
aggressively pursued.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
First and foremost, we note that the agency erred when it concluded
that complainant's case was moot because it had been resolved through
the grievance process. Complainant has asserted a claim for compensatory
damages which remains outstanding. Accordingly, the complainant cannot
be dismissed as moot. See Rouston v. National Aeronautics and Space
Administration, EEOC Request No. 05970388 (March 18, 1999).
Next, we agree that even if we assume arguendo that complainant
established a prima facie case as to all bases, we find the agency
has articulated a legitimate nondiscriminatory reason for its action.
Specifically, the agency indicated that complainant was placed Off-Duty
and Issued a Notice of Removal because a coworker overheard her make a
threat to shoot another employee which is in violation of the agency's
Zero Tolerance Policy. We find that complainant has failed to show
that her protected bases were considered with regard to this matter
and has not offered any evidence indicating that the agency's reasons
were pretexts for discrimination. Finally, while it may be true that
the agency failed to investigate her complaints about a coworker, that
failure does not justify complainant in making threats of violence.
For the foregoing reasons, the agency's final decision 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
05/08/09
__________________
Date
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0120080165
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080165