0120073617
05-29-2009
Michelle Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073617
Hearing No. 480-2006-00111X
Agency No. 1F-904-0003-06
DECISION
Complainant filed an appeal with this Commission from the July 2,
2007 decision of the agency which implemented the decision of an
EEOC Administrative Judge (AJ) who found no discrimination. Complaint
alleges 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.
Specifically, complainant, a Mail Handler, alleged that the agency
discriminated against her when:
1. On September 23, 2005, the Manager of Distribution Operations (MDO) and
the Supervisor of Distribution Operations (SDO) disapproved complainant's
Form 3971 Request for Notification of Absence (leave request) and altered
it by adding absence without leave (AWOL) to the leave request.
2. On September 30, 2005, complainant was sent a letter of removal while
recovering from chest pains.1
3. On October 30, 2005, complainant was placed on administrative leave.
After an investigation, complainant requested a hearing. Over
complainant's objections, the AJ issued a decision without a hearing
(summary judgment). In her complaint complainant alleged discrimination
on the bases of sex and in reprisal for prior protected activity.
The agency accepted and investigated the bases of sex and reprisal.
In the agency's motion for summary judgment, the agency framed the
complaint as alleging discrimination on the bases of race and reprisal.
Complainant did not object to this characterization. The AJ, in her
decision, defined the complaint as alleging discrimination on the bases
of race and reprisal. On appeal, complainant defines the complaint as
alleging discrimination on the bases of race and reprisal. Complainant
does not contend on appeal that sex discrimination was improperly not
considered. The Commission will, under the circumstances of this case,
consider the bases of sex, race, and reprisal in this decision.
Regarding claim 1, the AJ noted that it was undisputed that complainant
failed to provide any reason for her leave request for leave use on
September 25, 2005, and therefore the leave request was denied. The
AJ also noted that whether or not complainant was threatened with
being placed on AWOL was immaterial because she was not charged with
AWOL and that complainant failed to show that being charged with
AWOL was inappropriate when use of the requested leave was denied.
Regarding claim 2, the AJ determined that complainant did not dispute the
agency's factual reasons for the removal and did not provide evidence
that discrimination was a factor in her removal. The AJ referenced a
Threat Assessment Team's findings in which it was stated that neither
complainant nor any employee was allowed to dictate to management when the
employee would and would not work and which also stated that complainant
had been allowed to display unacceptable conduct without consequences.
On appeal, complainant asserts that she submitted a leave request on
September 23, 2005, for leave to be used on September 25, 2005, and that
the SDO immediately denied her leave request and, also, provided her with
a signed copy. She asserts that on September 24, 2005, she was detailed
to the World Way Postal Center by management and that on September 24,
2005, the MDO and the SDO came to her new assignment requesting to
meet with her immediately and creating a hostile environment for her.
Complainant asserts further that when she declined to meet with the
two, the MDO told the SDO to make the request to meet a direct order;
that the SDO threatened complainant with being charged AWOL if she took
off September 25, 2005; and the SDO insisted that she sign her September
23, 2005 request for leave usage on September 25, 2005, with the "AWOL"
written on it. Complainant also asserts that the improper treatment of
complainant resulted in her being rushed to the hospital on September 24,
2005, after calling 911.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth 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). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding 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. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
To establish a claim of harassment, a complainant must show that:
(1) complainant is a member of the statutorily protected class; (2)
complainant was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994). Further, the
incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
Because this is an appeal from a decision issued without a hearing, the
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a).
Upon review, the Commission finds that the grant of summary judgment
was proper. Complainant has failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits was warranted. Specifically, the Commission finds
that the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
The record reveals that complainant has engaged in prior EEO activity
at the formal and informal stages of the complaint process. The record
indicates that complainant engaged in EEO activity in January 2005,
April 2005, and December 2005. Complainant also engaged in EEO activity
in January, April, and September 2004, November 2003, September 2000,
and December 1996.
Initially, the Commission notes that because the agency has articulated
legitimate, nondiscriminatory reasons for its actions, the prima facie
inquiry will not be addressed. See United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Regarding claim 1, the agency has articulated a legitimate,
nondiscriminatory reason for denying complainant's leave request.
Namely, complainant failed to provide a reason for requesting LWOP.
The record contains three leave requests submitted by complainant
on September 23, 2005. Leave request #1 reflects that complainant
was requesting LWOP for two hours to be used on September 23, 2005.
The leave request indicates that it was disapproved by the SDO based
on the needs of the agency. Leave request #2 and request #3 reflect
complainant's request for four hours of leave without pay (LWOP) to
be used on September 25, 2005. Leave request #2 and request #3 also
reflect that the leave was disapproved by the SDO because complainant
failed to provide any reason for her need for absence. In addition,
leave request #3 has the notation of AWOL and, also, that complainant
refused to sign with a date of September 24, 2005.
The Commission notes that the SDO referred to provisions of the Employee
Labor Relations Manual (ELM) which provide that it is the responsibility
of a supervisor to approve or disapprove requests for leave and to control
unscheduled absences. The SDO also stated in his affidavit that each
request for LWOP is examined closely and a decision is made based on
the needs of the employee, the needs of the agency, and the costs to
the agency.
There is no evidence that complainant was requesting leave under the
Family Medical Leave Act (FMLA). Complainant's leave request does
not reflect her reason for requesting leave and the SDO stated in
his affidavit that complainant did not make her leave request under
the FMLA.
The Commission finds that although leave request #3 had a handwritten
marking of AWOL on the request, there is no evidence in the record that
complainant was charged AWOL for leave usage on September 25, 2005,
and she was, therefore, not harmed by the notation.
The Commission next addresses claim 2. The agency has also articulated
legitimate, nondiscriminatory reasons for its issuance of a letter
of removal to complainant. Complainant was removed because of her
unsatisfactory attendance and not for any discriminatory reasons.
The letter of removal identifies complainant's absences from June 12,
2005 through September 2, 2005,2 as the reason for her removal. It also
indicates that complainant's past record was also considered, i.e.,
a 14-day calendar suspension, dated March 17, 2005, for unsatisfactory
attendance by failing to maintain a regular work schedule; a September 20,
2004 notice of a seven-calendar-day, no-time-off suspension by failing
to follow instructions to adhere to a regular work schedule; and a letter
of warning, dated April 8, 2004, for failing to follow instructions.
The record reveals that Section 511.43 of the ELM provides in relevant
part that employees were expected to maintain their assigned schedule
and to make every effort to avoid unscheduled absences.
The Commission notes that the record contains a letter from the Department
of Labor (DOL) to the agency's FMLA Coordinator, dated November 8, 2005,
in response to an inquiry from the FMLA Coordinator on November 7, 2005.
In the letter, DOL informed the FMLA Coordinator that an employer could
not use the taking of FMLA leave as a negative factor in employment
actions such as disciplinary actions and, also, that FMLA leave could not
be counted under "no fault" attendance policies. The DOL letter also
informed the FMLA Coordinator that evidence supporting complainant's
seven-calendar-day, no-time-off suspension included FMLA absences which
could not be used as a reason for disciplinary action. The DOL's letter
occurred after the issuance of the letter of removal and in response to
an agency inquiry on November 7, 2005.
A finding that one explanation by an agency for a personnel action is
invalid does not mandate a finding that the act was discriminatory; all
the agency's proffered reasons must be examined. See Sims v. Cleland,
813 F.2d 790, 793 (6th Cir. 1987); Pollan v. United States Postal Service,
EEOC Request No. 05891093 (January 19, 1990). Moreover, an agency may
make a mistake and not incur liability under Title VII so long as there
is no evidence to indicate that those mistakes were based on complainant's
protected classes. See Texas Department of Community Affairs v. Burdine,
450 U.S. at 259; and Turner v. Texas Instruments, 555 F.2d 1251-57 (5th
Cir. 1977). Here, the record supports a finding that complainant had
an unsatisfactory attendance record and complainant does not dispute
her attendance record.
Accordingly, regarding claim 2, we find that the agency did not
discriminate against complainant.
Regarding claim 3, complainant's placement on administrative leave, the
agency has articulated a legitimate, nondiscriminatory reason for its
action. After her workers' compensation claim for chest pains and "severe
pressure rise" was denied by the DOL on October 25, 2005, complainant
was placed on administrative leave until her removal became effective.
The Acting MDO stated in her affidavit that she and the MDO and another
MDO (MDO-1) agreed that complainant should be placed on administrative
leave so as to prevent her from sustaining a work injury before her
removal became effective.
The record reveals that complainant alleged that she was injured at work
on September 24, 2005, when the MDO and SDO approached her at the worksite
where she was on detail. Complainant stated that she had to be taken
by ambulance from work to the hospital's emergency room. The record
reveals that complainant's workers' compensation claim for chest pains
and "severe pressure rise" was denied by the DOL on October 25, 2005.
The Commission accordingly finds that the agency did not discriminate
against complainant when it placed her on administrative leave.
The Commission will not second guess the agency's business decision in
a matter unless complainant can establish that such action was prompted
by discriminatory animus. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Further,
the record contains Section 519.24 of the ELM which provides that during
the time required for an investigation and decision regarding an adverse
action, management could place an employee in an off-duty, non-pay status,
in accordance with Section 651.4 or applicable bargaining unit agreement
and if this provision were not applicable and it was necessary to remove
the employee from a duty status, management could place the employee on
administrative leave until the effective date of an adverse action or
until the employee is returned to work, whichever occurred first.
As to all claims, complainant has failed to show by a preponderance of
the evidence that the agency's reasons for its actions were mere pretext
to discriminate or retaliate against her. To the extent that complainant
is alleging that the complaint constituted a hostile work environment,
we find the agency has articulated legitimate, nondiscriminatory reasons
for the tangible employment actions in which it engaged. Even accepting
as true complainant's allegation that the environment was hostile,
the record does not support a finding of discriminatory hostility.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's finding of no discrimination 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
May 29, 2009
__________________
Date
1 Complainant was reinstated to her position on July 6, 2006, pursuant
to a settlement under the collective bargaining agreement.
2 In its motion for summary judgment, the agency indicated that from June
12, 2005, to September 2, 2005, complainant accumulated 125.48 hours
of unscheduled absences, including 18.22 hours of AWOL. The agency
explained that its calculations regarding complainant's absences were
based on the 12 work weeks between June 12, 2005 and September 2, 2005,
noting that complainant was scheduled to work 40 hours or a total of
480 hours during the 12 weeks.
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0120073617
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013