2020000018•EEOC Appeal 2020000018
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martine L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000018 Agency No. 4J-630-0010-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 5, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a full-time Sales Services Distribution Associate, PS 06 at the Agency’s Saint Charles Post Office in Saint Charles, Missouri. On February 23, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on sex (female), color (white), and age (YOB: 1958) when: on September 20, 2017, Complainant was issued a Letter of Removal. After the investigation of the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website.
2020000018 2 Administrative (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant withdrew the initial request for a hearing. On September 5, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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 a 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). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, a 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). Our review of the record reflects that the Agency provided legitimate, non-discriminatory reasons for Complainant’s removal. Complainant’s first level supervisor (“S1”) issued Complainant the Letter of Removal because Complainant failed to maintain a regular work schedule. S1 denied that Complainant’s color, sex, or age was a factor in her determination to remove Complainant. Instead, S1 acknowledged that Complainant’s removal was warranted given the progressive discipline she had previously issued Complainant.
2020000018 3 Specifically, S1 explained that she provided Complainant attendance discussions on February 4, 2016, March 1, 2016, August 16, 2016, December 6, 2016, and January 25, 2017. S1 stated that she issued Complainant a letter of warning on June 28, 2016,2 a seven-day suspension on October 22, 2016,3 and a fourteen-day suspension on January 11, 2017,4 all for failure to maintain a regular work schedule. S1 also indicated that she conducted a pre-disciplinary interview (“PDI”) on September 2, 2017 before she issued the Letter of Removal. S1 acknowledged that Complainant was approved for Family Medical Leave Act (“FMLA leave” from May 11, 2016 to January 6, 2017. However, S1 explained that Complainant was approved to use FMLA for one day each week, and Complainant was further required to maintain 1250 work hours to qualify for and remain in FMLA leave status. S1 indicated, however, that Complainant fell under 1250 work hours on July 23, 2016 and did not achieve the 1250 work hours until September 23, 2017. S1 further clarified that the absences referenced in the Letter of Removal were not FMLA approved absences, as Complainant’s approved FMLA agreement ended on January 5, 2017. Complainant’s manager (“M1”) concurred with S1’s issuance of the proposed Letter of Removal in light of Complainant’s prior discipline and given that Complainant had not worked enough hours for FMLA approval. Specifically, M1 noted that from 2016 to 2017, Complainant called in for FMLA leave more than the approved one FMLA absence a week which resulted in her having 291 calls for absences. Complainant asserted that her attendance improved after January 12, 2017. However, Complainant’s Postmaster indicated that Complainant had 29 instances of unscheduled leave after this date. Like S1 and M1, the Postmaster explained that Complainant’s removal was based on her excessive use of unscheduled leave, and the removal was the next step in progressive discipline after Complainant had been previously disciplined for failure to maintain a regular work schedule. A copy of the September 26, 2017 Letter of Removal indicates that Complainant was removed, effective October 27, 2017, for failure to maintain a regular work schedule. The letter indicates that Complainant had several unscheduled absences from December 28, 2016 through August 31, 2017. The letter further indicates that a PDI was conducted on September 2, 2017 and Complainant indicated during the PDI that she took leave in August 2017 because she “could not face the customers.” Finally, the letter references Complainant’s prior disciplinary actions including a June 2016 Letter of Warning, an October 2016 seven-day suspension, and a January 2017 fourteen-day suspension, all for failure to maintain a regular work schedule. 2 A copy of the letter of warning in the record is dated June 27, 2016. 3 A copy of the seven-day suspension in the record is dated October 3, 2016. 4 A copy of the fourteen-day suspension is signed by M1 on January 12, 2017.
2020000018 4 We conclude that neither during the investigation nor on appeal has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex, color, and age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
2020000018 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 17, 2020 Date
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