0120090500
07-10-2009
Sandra D. Bingham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra D. Bingham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090500
Agency No. 4H300013308
DECISION
On November 15, 2008, complainant filed an appeal from the agency's
October 15, 2008 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a City Carrier at the Ralph McGill Carrier Annex of the Atlanta,
Georgia Post Office. Complainant has engaged in prior EEO activity.
Specifically, in approximately July-August 2007, complainant filed an
EEO complaint of discrimination against her direct manager (M1) based
on age.
On October 12, 2007, complainant received a Letter of Warning for failure
to follow instructions and unsatisfactory work performance.
Complainant requested Annual Leave for the period of November 19, 2007,
through December 5, 2007. Subsequently, complainant's leave was approved
only for November 19, 2007, through November 30, 2007. The agency noted
in the leave approval letter that she would be needed in the month of
December.
On December 1, 2007, complainant refused to follow M1's
instructions. Consequently, complainant said she was sick and left work
without permission. Additionally, complainant did not come into work
on December 3, 2007. As a result, complainant was charged with Leave
Without Pay (LWOP) for those two days. M1 stated that this was not the
first time complainant behaved in this manner.
On January 11, 2008, complainant was issued a Notice of 14-Day Paper
Suspension, dated January 10, 2008, for alleged failure to follow
instructions, and unsatisfactory work performance/working unjustified
overtime.
On January 31, 2008, complainant was issued a Notice of Proposed Removal,
dated January 15, 2008, for alleged failure to follow instructions,
and unsatisfactory work performance/working unjustified overtime.1 M1
asserted that, because complainant had documented performance issues on
file for repeatedly failing to perform satisfactorily and correct her
deficiencies, this discipline was the result of management's progressive
attempts to address complainant's performance over time.
On April 21, 2008, complainant filed an EEO complaint alleging that she
was discriminated against in reprisal for prior protected EEO activity
(arising under ADEA) when:
1. In December 2007, she was charged Leave without Pay (LWOP) instead
of sick leave;
2. She received a 14-Day Paper Suspension and Notice of Proposed Removal;
and
3. In August 2007, she was charged LWOP instead of sick leave.2
At the conclusion of the investigation, 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a 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. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Here, complainant alleges she was subjected to retaliation when she was
charged LWOP instead of sick leave in December 2007; and she received
a 14-Day Paper Suspension and Notice of Proposed Removal. 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, she must first establish a prima facie
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). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
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 the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. 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); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990); Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990). Here, we will assume without finding that
complainant established her prima facie case of reprisal discrimination.
The agency articulated legitimate, nondiscriminatory reasons for taking
the actions at issue. M1 noted that complainant failed to follow
instructions and simply left work on more than one occasion, and that
management addressed both behavior and performance issues with complainant
through "corrective action over time." M1 further noted that complainant
had documented performance issues on file where she repeatedly failed
to adhere to the required performance level, and made no efforts to
correct her deficiencies. M1 stated that the disciplinary actions used
were in direct correlation with the "Employee and Labor Relation Manual,
and the M-41 Handbook, City Delivery Carriers and Responsibilities,"
which requires that employees obey the instructions of their managers
while remaining prompt, courteous, and obliging during the performance
of their duties.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
were pretext for discrimination. Complainant argued that December
1, and December 3, 2007, were dates within her available annual
leave period and she should have been granted her requested annual
leave. However, the record reflects that complainant was needed to
work in the month of December. Further, in spite of being denied
leave for these dates, complainant chose to leave work on those
dates without permission. Complainant did not deny the allegations of
working unauthorized overtime and failing to follow instructions as
detailed in the disciplinary notices she received. The record further
reflects that complainant's behavior and performance were addressed on
multiple occasions, and this was in line with progressive disciplinary
action. While complainant makes assertions regarding the behavior and
discriminatory motives of the management officials, the preponderance
of the record does not support her claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding of no discrimination.
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
July 10, 2009
Date
1 On March 24, 2008, complainant's 14-Day Suspension and Proposed Removal
were reduced to a 7-Day Paper Suspension after the Manager of Customer
Service Operations (M2) reached an agreement with the President of the
National Association of Letter Carriers (NALC) during the grievance
process.
2 Prior to an investigation, the agency dismissed complainant's claim
3 for untimely EEO Counselor contact. Complainant does not contest the
dismissal on appeal.
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0120090500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090500