Rosetta Davis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionJan 21, 2010
0120093122 (E.E.O.C. Jan. 21, 2010)

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

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0120093122