0120093122
01-21-2010
Rosetta Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Rosetta Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093122
Agency No. 4G720001509
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 22, 2009 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.
During the relevant time period, complainant was employed as a City
Carrier at the agency's Whitehall Station in Pine Bluff, AR. On February
19, 2009, complainant filed the instant formal complaint. Therein,
complainant claimed that she was subjected to unlawful discrimination
on the bases of race (African-American), sex (female), color (Black),
age (46), and reprisal for prior protected EEO activity when:
1. On September 23, 2008, complainant's supervisor rushed her to get
off the clock;
2. On October 17, 2008, complainant was provided a written direct order
to be off the clock in eight hours; Complainant further alleges that her
supervisors came out to her route to question her about misdelivered mail;
and her supervisors watched her as she delivered her route;
3. On October 30, 2008, complainant's badge was removed from the rack
and her supervisor punched her out;
4. On November 7, 2008, complainant was issued a Letter of Warning based
on insubordination;
5. On November 7, 2008, complainant was issued a 14-day suspension dated
October 13, 2008, based on unsatisfactory attendance; and
6. On January 22, 2009, complainant was made aware of the grievance
settlement for the 14-day suspension that she disagreed with and was
also given a discussion regarding her attendance.
The agency accepted claim 5 for investigation. However, in a decision
dated March 18, 2009, the agency issued a partial dismissal concerning
claims 1, 2, 3, 4, and 6 pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. At the conclusion of the
investigation concerning claim 5, complainant was provided with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested
a final agency decision.
In its July 22, 2009 final decision, the agency found no discrimination
concerning claim 5. The agency determined that complainant failed to
establish a prima facie case of discrimination as alleged. Nevertheless,
the agency articulated a legitimate, nondiscriminatory reason for its
actions which complainant failed to show were a pretext.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Here, the agency found that complainant failed to establish a prima
facie case of discrimination on any alleged basis. Specifically, the
agency determined that complainant failed to identify any similarly
situated individuals outside of her protected classes who were treated
more favorably regarding the 14-day suspension identified in claim 5
of the instant matter. However, the agency found further that the
agency articulated legitimate, non-discriminatory reasons for its
actions. Namely, the record indicates that complainant was issued
the 14-day suspension for violation of agency attendance policies
when she repeatedly had unscheduled absences. The agency explained
that complainant's supervisor met with complainant and complainant's
union representative to allow complainant the opportunity to explain
her irregular attendance. Complainant offered no information regarding
medical illness, injury or other issue that would cause complainant to
be irregular in attendance. The agency indicates that complainant was
referred to the EAP program and provided information regarding FMLA for
assistance. The agency indicates also that upon review of complainant's
attendance and disciplinary record; complainant's supervisor learned
that complainant had previously been issued a letter of warning and a
7-day suspension for unscheduled absences. Accordingly, as the next
progressive disciplinary step, the agency issued the 14-days suspension
at issue herein. According to complainant's supervisor, complainant
has a history of irregular attendance and complainant's supervisor
has previously reduced discipline for complainant with assurances from
complainant that she would improve her attendance. The agency determined
that complainant's continued irregular attendance justified issuance of
the October 13, 2008 14-day suspension.
Having considered the evidence of record regarding claim 5; the 14-day
suspension, the Commission finds that the agency's conduct was based
on complainant's irregular attendance and not on any animus toward
complainant's protected classes. The Commission further finds that
complainant has failed to establish that the agency's articulated reasons
were a pretext for discrimination.
Regarding claims, 1, 2, 3, 4 and 6, the Commission finds that complainant
has failed to demonstrate that she suffered any harm with respect to the
terms and condition of her employment. The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In addition, the Commission notes that the record demonstrates, and
complainant acknowledges, that the Letter of Warning identified in claim
4 was removed from complainant's personnel folder. Moreover, concerning
claim 6, the Commission notes that complainant's dissatisfaction with
the grievance settlement should be raised within the grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the grievance process.
The Commission determines that the agency's finding of no discrimination
concerning claim 5 was proper. Moreover, the Commission affirms the
agency's dismissal of claims 1, 2, 3, 4 and 6 in accordance with 29
C.F.R. � 1614.107(a)(1). Accordingly, the agency's decision in its
entirety is affirmed for the reasons set forth herein.
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
January 21, 2010
__________________
Date
2
0120093122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093122