Sahendrika N. Solanki, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 30, 2005
01a52926 (E.E.O.C. Sep. 30, 2005)

01a52926

09-30-2005

Sahendrika N. Solanki, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sahendrika N. Solanki v. United States Postal Service

01A52926

September 30, 2005

.

Sahendrika N. Solanki,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A52926

Agency No. 4K-230-0215-04

DECISION

Complainant filed an appeal with this Commission from a February 4,

2005 agency decision, finding no discrimination.

In her complaint, complainant alleged that the agency discriminated

against her on the bases of race (Indian), national origin (India),

and color when:

1. On May 19, 2004, complainant was issued a letter of warning.

2. On an unspecified date(s), the Supervisor of [Customer Service](SCS)

provided negative information and hindered complainant's transfer.

3. On an unspecified date(s), the SCS kept watching complainant

constantly.

4. On an unspecified date(s), the SCS did not convey [complainant's]

message and/or transfer her call to the Postmaster.

5. On an unspecified date, complainant and other PTF [part time

flexible] Clerks were scheduled a two-hour work schedule on Sunday.

At the conclusion of its investigation, the agency informed complainant

of her right to request a hearing before an EEOC Administrative Judge or,

alternatively, to receive a decision by the agency. When complainant

failed to respond within the time period specified in 29 C.F.R. �

1614.108(f), the agency issued its decision pursuant to 29 C.F.R. �

1614.110(b).

A letter of warning, dated May 19, 2004, is contained in the record.

The letter reflects that complainant was issued the letter because she

was absent without leave (AWOL) on May 10, and May 11, 2004, having

failed to report to work as scheduled. The letter also reflects that

complainant was scheduled to work on May 10, and May 11, 2004, and

complainant's failure to report to work was in violation of the terms

of section 666.81 of the Employee Labor and Relations Manual (ELM).

The record also contains letters of warnings issued to employees, not

of complainant's race, for unsatisfactory attendance and AWOL.

The record contains a copy of a schedule posting which reflects

that complainant was scheduled to work on May 10, and May 11, 2004.

The record also contains a leave request which discloses that complainant

had requested leave for May 10, and May 11, 2004, that the leave request

was received by complainant on May 8, 2004, and that her leave request

was not approved. In the affidavit of the SCS, the SCS stated that in a

pre-disciplinary interview with complainant before the issuance of the

letter of warning, complainant told her that it did not matter whether

her leave request was approved or disapproved because she had to go and

see her children.

The record does not contain an affidavit from complainant. The record

reflects that two requests for affidavits were sent to complainant by

the complaint investigator and that complainant did not respond or submit

an affidavit as requested.

As noted earlier, the record contains the affidavit of the SCS.

The SCS stated that she answered the telephone when complainant called

to speak to the Postmaster. The SCS stated further that she informed

complainant that the Postmaster was on the telephone and that she would

tell him to return complainant's call which, the SCS stated, she did.

The SCS stated that following complainant's telephone call, the Acting

204B Supervisor at the Mechanicsville Post Office where complainant was

working, called the SCS and told her that the reason complainant wanted to

talk to the Postmaster was because complainant wanted a transfer to the

Sandston Post Office. The SCS stated that the Acting 204 B Supervisor

put complainant on the line and the SCS told complainant that she had

given the Postmaster her message. The SCS stated that complainant told

her that the Sandston Postmaster had already told her that he would

accept her transfer as soon as their Postmaster gave her a release date.

The SCS stated in her affidavit that she again conveyed complainant's

message to the Postmaster and that the Postmaster told her to call the

Sandston Post Office and tell the Sandston Postmaster that he would

release complainant. The SCS also stated that she called the Sandston

Postmaster to tell him that complainant would be transferred but the

Sandston Postmaster told her that he had not told complainant that he

would accept her transfer, that he did not have an opening at the time,

and that when he did have an opening, he had received another transfer

request months prior to complainant's request, and that he would have

to consider the prior transfer request if an opening became available

for a transfer. The SCS stated that the Sandston Postmaster asked her

why complainant was unhappy and she told him that she had heard that

complainant did not like working split shifts, Sundays, and holidays.

The SCS also stated that the Sandston Postmaster told her that complainant

had been to his office complaining about those same issues. The SCS

stated that she told the Sandston Postmaster that complainant had been

placed on absence without leave a few weeks prior to his call. She also

stated that complainant went to the Sandston Postmaster's office after

the SCS's conversation with him and told him that she believed that she

was going to receive a letter of warning for being on AWOL.

The SCS stated in her affidavit that another employee (Employee A)

requested a transfer and the Postmaster of the office to which Employee

A wanted to transfer called to talk to her about Employee A's attendance.

To establish a prima facie case of race, color, or national origin

discrimination, a complainant must show the following: (1) complainant was

a member of the protected class; (2) an adverse action was taken against

complainant; (3) a causal relationship existed between complainant's

membership in the protected class and the adverse action; and (4)

other employees outside of complainant's protected class were treated

differently.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion, or in

reprisal is unlawful. To establish a prima facie case of harassment,

a complainant must show that: (1) s/he belongs to a statutorily

protected class; (2) s/he 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 and (5) some basis exists to impute liability to the

employer, i.e., supervisory employees knew or should have known of the

conduct but failed to take corrective action.

In a complaint which alleges disparate treatment and there is an absence

of direct evidence of discrimination, the allocations of burdens and

the order of presentation of proof is a three-step process. A claim

of disparate treatment is examined under the three-part analysis first

enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he or she must first establish

a prima facie case of discrimination by presenting facts that, if

unexplained, reasonably give rise to an inference of discrimination,

i.e., that a prohibited consideration was a factor in the adverse

employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency

must articulate a legitimate, nondiscriminatory reason for its actions.

See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). If the agency is successful in meeting its burden, complainant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

However, the ultimate burden of persuading the trier of fact that the

agency intentionally discriminated against complainant remains at all

times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 143 (2000).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for its action, the

factual inquiry can proceed directly to the third step of the McDonnell

Douglas analysis to the ultimate issue of whether complainant has shown by

a preponderance of the evidence that the agency's actions were motivated

by discrimination. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990). The burden

of persuasion that the agency discriminated against complainant always

remains with complainant.

As an initial matter, the Commission notes that, because this is an

appeal from an agency decision issued without a hearing pursuant to 29

C.F.R. � 1614.110(b), the agency's decision is subject to de novo review

by the Commission. See 29 C.F.R. � 1614.405(a).

Regarding claim 1, we find that the agency has provided a legitimate,

nondiscriminatory reason for issuing the letter of warning, i.e.,

complainant failed to report to work as scheduled. Further,

the Commission concludes that complainant has failed to show by a

preponderance of the evidence that the agency's actions were pretext

for discrimination.

Regarding claim 2, we find that complainant has failed to establish a

prima facie case of discrimination. She has not shown that others outside

of her protected groups were treated more favorably than she was treated.

Moreover, there is no evidence that there were openings at the Sandston

Post Office. Also, there is no evidence that complainant was not offered

or denied a transfer to the Sandston Post Office as a result of negative

information provided to the Sandston Post office. Even assuming that

complainant has established a prima facie case of discrimination regarding

claim 2, the record reveals that the information about complainant

was provided to the Sandston Postmaster because he inquired as to the

reason why complainant was seeking a transfer. Accordingly, the agency

has articulated a legitimate, discriminatory reason for providing

information to the Sandston Postmaster and complainant has failed to

show that the agency's reason was mere pretext to mask discriminatory

animus. The record reflects that complainant herself had already told

the Sandston Postmaster that she believed that she would be receiving

a letter of warning and that she did not like working swing shifts,

Sundays, and holidays.

Regarding claim 5, we find that complainant has not established a prima

facie case of discrimination. She has failed to show that others who

were similarly situated and not in her protected classes were treated

more favorably by not being scheduled to work on Sunday.

All that remains of complainant's harassment claim are the incidents

alleged in claims 3 and 4. The Commission finds that claims 3 and

4 fail to establish a prima facie case of discriminatory harassment.

Complainant has not shown that the harassment complained of was based

on her protected classes or that the alleged harassment had the purpose

or effect of unreasonably interfering with her work environment and/or

creating an intimidating, hostile, or offensive work environment.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court

appoint an attorney to represent you and that the Court 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 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

September 30, 2005

__________________

Date