0120140339
04-27-2016
Mindy O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mindy O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120140339
Hearing No. 410-2013-00042X
Agency No. 1K-304-0014-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 2, 2013, 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. For the reasons stated below we AFFIRM the Agency's final order which fully implemented the Equal Employment Opportunity Commission Administrative Judge (AJ) finding that Complainant did not demonstrate that she was subjected to discrimination.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant did not establish that she was subjected to discrimination based on her sex and race.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Tour 3 at the Agency's Maintenance Operations, Network Distribution Center (NDC) in Atlanta, Georgia. Prior to the issues raised in this case, the Agency placed Complainant on enforced leave in the summer of 2009 due to a medical condition that the Agency found prevented her from performing the essential functions of her supervisory position. Complainant challenged this issue in an appeal to the Merit System Protection Board (MSPB). The Initial Decision dated April 27, 2010, found for the Agency. Complainant appealed the decision to the full MSPB. Since being placed off the clock in 2009, Complainant has continuously alleged before the EEOC and MSPB that she was able to perform her duties. On February 1, 2012, Complainant entered into a settlement agreement which resolved Agency Complaint No. 1K-304-0006-12. The Agency returned Complainant to her NDC position effective February 11, 2012.
On May 21, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
1. She was denied annual leave on February 19, 2012:
2. A schedule change, which Complainant requested on February 13, 2012, that would have afforded her different off days of Friday and Saturday:
3. She was denied a pay increase in FY 2010 and 2011 equal to those given male maintenance supervisors; and.
4. She was given unscheduled sick leave on June 1, and June 8, 2012, because her sick leave request was denied.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. A hearing was held on March 6, 2013. The AJ noted that Complainant's representative became agitated and aggressive toward Agency's counsel during the hearing and so the AJ determined it would be best to halt the hearing at that time and to make a decision based on the testimony that had been presented.
With respect to claim no. 4, the Agency established that Complainant's request for sick leave was granted; therefore, the AJ dismissed claim no. 4 for failing to state a claim.
Next, the AJ found that assuming arguendo that Complainant established a prima facie case of race and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was denied annual leave on February 19, 2012, because she was just returning to her position after a two and a half year absence through a settlement agreement. The Agency noted that Complainant knew she had plans but did not request any leave during the settlement agreement. Moreover, a tour supervisor would have been needed to replace her for that day so her request was denied. Regarding claim no. 2, Complainant was not granted a schedule change because the schedule that she desired with Fridays and Saturdays off belonged to a supervisor that had been injured on the job and as was returning to his position; therefore, the time schedule was not available.
With respect to claim no. 3, the Agency indicated that according to Agency regulations Complainant was not eligible for a pay increase because she had not worked the year before. Nevertheless, the Agency explained that no male or female received a pay increase in FY 2010 or FY 2011 due to a pay freeze. The AJ found that Complainant did not present any evidence which suggested that the Agency's reasons were pretext for discrimination. The AJ found that Complainant did not demonstrate that she was subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that contrary to the AJ's description of her representative, he was not agitated or aggressive. Complainant also maintained that the AJ erred in finding that she was not subjected to sex discrimination when she did not get a pay increase even though male employees did. Complainant also maintained that the AJ erred when she considered the MSPB's decision that was provided by the Agency for the AJ's review.
Complainant asserts that the Agency failed to explain why it placed her off the clock for two and a half years because of her medical condition (multiple sclerosis) and incorrectly found that she was unable to perform the essential functions of her position. Further Complainant contends that the time she was off should have been FMLA-LWOP instead of LWOP. Complainant requests back pay and all remedies due to her.
In response, the Agency notes that the AJ incorrectly included the Agency number and the hearing number of another one of Complainant's cases in with the instant case. The Agency asserts however that the facts of the included cases were not mentioned at the hearing. The Agency also contends that Complainant did not cite any specific evidence to support her contentions and Complainant's disagreement with the AJ's credibility findings regarding her representative are not cause for overturning the AJ's decision. The Agency requests that the AJ's finding be affirmed.
ANANLYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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 final Agency order. We agree with the AJ that assuming arguendo that Complainant established a prima facie case of race and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that with regard to claim no. 1, the denial of annual leave, management explained that Complainant's leave request was denied because she had just returned to work the week before - after a two and a half year absence - and there was a need for a tour supervisor. With regard to claim no. 2, a request for a change in schedule, management indicated that the scheduled time that Complainant requested was no longer available because the supervisor who had that schedule returned to work. Regarding claim no. 3, the Agency maintained that as Complainant was out of work for over a year she was not eligible for a pay increase. More importantly, however, the Agency indicated that no one received a pay increase in FY 2010 and FY 2011. We agree with the AJ that Complainant did not show that the Agency's reasons were pretext for discrimination. Finally, we agree with the AJ's dismissal of claim no. 4 on the grounds that it failed to state, because Complainant was allowed to take unscheduled sick leave and was paid.
With respect to Complainant's contentions on appeal we find that her arguments consist primarily of disagreeing with the AJ's findings. We find that Complainant has not offered any evidence which suggests that the AJ erred in finding that she did not demonstrate that she was subjected to discrimination. Accordingly, we find the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
The Agency's final order which fully implemented the AJ's finding of no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/27/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140339
2
0120140339