0120080274
09-25-2009
Michele Gilchrist, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michele Gilchrist,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080274
Agency No. 4K-230-0225-06
Hearing No. 430-2007-00195X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 19, 2007, 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. Complainant alleged
that the agency discriminated against her on the bases of race (Black)
and reprisal for prior protected EEO activity when:
1. On July 8, 2006, she submitted PS Form 3971 (Request for Annual
Leave) for October 20 and 21, 2006, which was later disapproved on July
10, 2006, citing "no replacement" as the reason for the denial; and
2. On August 4, 2006, she submitted a second leave slip for October
21, 2006, and it was also disapproved on August 8, 2006, again citing
"no replacement" for the denial.1
Complainant, a Service and Sales Associate, PS-5, at the Walnut Hill
Station Post Office in Petersburg, Virginia, alleged that her leave
request was denied but a White male coworker's leave request was granted
even though he requested the leave after complainant's request had
been denied. Complainant indicated that she was told that her leave
request was denied because another employee had already requested leave
for those days and there were no other replacements. She submitted
a second request and was again told that her leave was denied because
there was "no replacement." Complainant's scheduled work hours are from
8:25 am to 5:00 pm on Tuesday through Friday and 5:30 am to 2:00 pm on
Saturdays. Complainant indicated that she believed discrimination was
a factor because her supervisor allowed other employees to take leave
and replacements were found for them but the supervisor would not find
a replacement for her.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding that complainant failed to show that she was
subjected to discrimination. The AJ found that even assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency had articulated legitimate nondiscriminatory reasons for
its actions, namely, that complainant was the only full-time employee
scheduled to work on Saturdays and that if complainant, the primary
worker, was not at work and the relief worker was not at work, the
station would have no coverage. The AJ found that complainant failed
to show that the agency's reason was pretext for discrimination.
On appeal, complainant contends that the AJ's decision is rife with
factual errors. She maintains that the decision steered clear of
the fact that the rule was that leave was to be granted on a first
come/first served basis. She asserts that it is understood that
the once an employee's leave is denied, regardless of the length of
time requested, no other employee is permitted to take annual leave.
Complainant maintains that management admits that it "was an oversight to
disapprove the grievant's leave" (Exhibit 8 page 3 of 44). Complainant
explained that she had a wedding to perform and the way that leave is
suppose to work is that if she needed to take leave her back-up person
is suppose to fill in for her, and a Part-Time-Flexible Clerk is suppose
to fill in for him.
The agency requests that the Commission affirm its final agency decision,
finding no discrimination. The agency maintains that the record is
fully developed and that complainant failed to show that discrimination
had anything to do with her denial of leave. The agency asserts that
complainant failed to rebut the agency's legitimate nondiscriminatory
reasons for its actions.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate, as there exists no genuine issue of material
fact.
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
order. The Commission agrees that assuming arguendo that complainant
established a prima facie case of discrimination as to all bases, the
agency articulated a legitimate nondiscriminatory reason for its action,
namely that "no replacement" was available to fill in for complainant
on those dates. The record reflects that a replacement employee was
not available because the person who had been acting as complainant's
replacement had requested to be taken off of the overtime-desired list
for that weekend because he wanted to take leave. The record shows that
the person's leave request was approved outside of the normal chain of
command and as so, we find that complainant was correct in asserting
that the normal leave procedures were not followed. Notwithstanding,
we find, that other than complainant's own conclusory statements, she
has failed to show that the decision to deny her leave request, however
unreasonable, was due to discriminatory reasons. The record simply
shows that because of the agency not following its normal procedures,
the person who ordinarily fills in for complainant was unavailable,
which left no one with experience to cover the station. There is no
evidence from which to conclude that this situation more likely than
not occurred because of unlawful discrimination. As such, we find that
complainant has failed to demonstrate that the agency's reasons were
pretext for discrimination.
Accordingly, the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred. The agency's finding of no
discrimination is therefore 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
September 25, 2009
Date
1 In September 2006, complainant filed a Step 1 grievance pertaining
to the denial of her October leave request. The step 1 grievance was
denied. The step 1 denial was appealed to step 2. At step 2, management
agreed that there was an oversight in the disapproval of the complainant's
leave request and agreed to allow her annual leave upon submission of
a new PS form 3971. The complainant, through her union representative,
did not accept the settlement.
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0120080274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080274