0320130051
10-23-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Petition No. 0320130051
MSPB No. CH0752120230I1
DECISION
On June 10, 2013, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of the events giving rise to the instant matter, Petitioner was employed as a Manager of Information Systems in Milwaukee, Wisconsin. According to the MSPB AJ's Initial Decision dated June 19, 2012, Petitioner was employed on a full-time basis in Milwaukee, Wisconsin, and elected to commute every day to work from her home in Chicago, Illinois. Petitioner usually commuted by an Amtrak train that runs between Chicago and Milwaukee, but she occasionally made the commute by car. Petitioner had a badge that she swiped at the Agency's parking garage in Chicago, as well as, at the parking garage and office facilities in Milwaukee. The purpose of this swipe was to electronically record her presence in all locations for time and attendance purposes. An access ring at the Agency's parking garage in Milwaukee would reflect that she commuted by car, and an access ring at the Agency's parking garage in Chicago reflected that she commuted by train.
Petitioner's immediate supervisor proposed her removal in the instant matter. He assumed the position of Finance Management Supervisor (S1) on October 19, 2010. He testified that he told employees under his supervision, including Petitioner, that they were supposed to work an eight hour day. He advised that any absence over one hour had to be approved through submission of a leave slip. On or around December 23, 2010, Petitioner was absent from work and did not request leave. S1 requested a list of days beginning in August 2010, that Petitioner was absent from her assigned duties during business hours. The evidence compiled reveled that on nine separate occasions, Petitioner was absent from her assigned work station, and had not submitted a leave slip. Based on these submissions, a proposed removal based on an unacceptable conduct charge for Petitioner's failure to adhere to a regular work schedule of 8:00 a.m. to 5:00 p.m., Monday through Friday with a one hour lunch period was issued.
A hearing was held on June 14, 2012. At the hearing, Petitioner raised two affirmative defenses relevant to the issues this decision is considering. Petitioner alleges that she was subjected to retaliation because she complained after being subjected to harassing conduct on several occasions. Additionally, Petitioner alleges that she was discriminated against because of her race when she was compared to employees of different races. In the June 19, 2012 decision, the AJ declined to sustain any of Petitioner's affirmative defenses, finding that Petitioner did not present sufficient evidence to establish that she was subjected to retaliation or discrimination based on race. The AJ found that Petitioner's misconduct was repetitive in nature, and even occurred after she was specifically warned that she was required to submit a leave request form anytime she was absent from duty for longer than one hour. The AJ held that the serious nature of her misconduct warranted removal.
Petitioner subsequently filed the instant petition. Petitioner contends that the affirmative defenses of retaliation and race discrimination should be sustained based on evidence contained in the record.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
ANALYSIS AND FINDINGS
The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on race and retaliation, the Commission agrees that the Agency articulated legitimate, nondiscriminatory reasons for her removal. Specifically, that Petitioner was terminated from her position for failing to follow instructions to adhere to her regular work schedule of 8:00 a.m. to 5:00 p.m., or request leave when she was away from duty. Like the MSPB, we find that Petitioner failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
____10/23/14______________
Date
2
0320130051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320130051