0120080238
04-28-2009
Ann Milton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ann Milton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080238
Agency No. 4H-327-0091-07
DECISION
On October 13, 2007, complainant filed an appeal from the agency's
September 24, 2007 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision (FAD).
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk, PS-05, at the West Palm Beach Post office in
Florida. On May 2, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
national origin (African/Indian), sex (female), color (black), age (48),
and reprisal for prior protected EEO activity [arising under Title VII]
when:
1. she was subjected to a hostile work environment in that on February
13, 2007, she learned that the Step 2 Management Designee had called her
"an animal who likes to mark her scent while using nesting techniques"
and he made false medical accusations1 about her; and
2. on April 25, 2007, her Part-Time Regular (PTR) position was abolished
and she was forced into a full-time position.
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). Complainant requested
a final decision, and therefore a FAD was issued pursuant to 29 C.F.R. �
1614.110(b). The FAD concluded that complainant failed to prove that
she was subjected to discrimination as alleged.
The FAD found, as to the alleged insulting comments in issue (1),
that complainant failed to state a claim because she was not aggrieved.
The FAD further found that complainant did not allege harassment severe
or pervasive enough to constitute unlawful harassment. The FAD further
found that there was a non-discriminatory explanation proffered for the
"animal" comment. Specifically, the Step 2 Designee testified relative
to the alleged animal statement that he was simply rendering an opinion
regarding complainant's hostile activities that were directed towards
a Hispanic coworker. He likened complainant's barricading of the joint
work area by strategically placing her personal belongings all about the
work area in an attempt to prevent Hispanics from using storage space
for their items, as an animal marking her spot. He asserted that his
comments were not verbalized to complainant personally and that they were
not intended to create a hostile work environment. He further asserted
that he has made no medical opinion regarding complainant and is unsure
of what medical accusations complainant was referring to.
As to issue (2), the FAD found that the record evidence does not support
that complainant's part-time position was abolished on or about April
25, 2007. Rather, the evidence reflects that complainant was notified
via letter dated June 30, 2006, that her PTR position was being abolished
due to service needs, and the position was subsequently reposted as a
Full Time position on July 26, 2006. Moreover, the record indicates
that complainant previously initiated EEO Counselor contact regarding
the abolishing of said position (Case No. 4H-327-0014-06) on September
15, 2006. Thus, the FAD found that since the matter has been addressed in
a prior EEO complaint, that portion of complainant's complaint relating
to the abolishing of her part-time position is subject to dismissal in
accordance with 29 C.F.R. � 1614,107(a) for failure to state a claim.
The FAD found that the only issue relative to complainant's bid position
involved in this present complaint is that she was notified via memorandum
dated April 23, 2007, from the Supervisor, Customer Service Support, of
the residual full-time positions available from which to choose upon her
return to duty following the arbitration decision. The FAD found that
notification of such availability does not, in and of itself, constitute
an adverse employment action on the part of management officials.
The FAD next found that complainant failed to establish a prima facie
case of discrimination as to the claim that she was forced into a
full-time position, noting that she was unable to identify similarly
situated individuals, outside her protected classes, who were treated
more favorably under similar circumstances.
The FAD further noted that management had articulated legitimate,
nondiscriminatory reasons for its actions, namely, the Supervisor,
Customer Services, testified that complainant's Part-Time Regular position
was abolished because of the need for other allied duties and the need
for a Full-Time Box Clerk. She averred that complainant was the only PTR
left in the unit who did not have an established assignment such as window
clerk or schemes. Thus, when it became necessary to obtain a full-time
clerk position with other duties in the Box Section, complainant's
position was the only one that could be abolished and reposted full-time
to give the office the flexibility it needed. She further stated
that although the part-time assignment was abolished so that the job
could be reposted as a full time position, no plans were made to remove
complainant from her five-hour assignment, only from the bid. She went
on to state that, upon complainant's return to duty as a result of the
arbitration decision, since she was an unencumbered (unassigned) employee,
the only available positions were full time positions. Consequently,
she was given a choice of three full-time positions, and she chose an
eight-hour Distribution/Window Clerk position. The FAD then found that
complainant had presented no evidence of pretext.
On appeal, complainant asserts that the humiliating comments are not
merely "alleged" but were definitely made, and clearly show that the
individual who made them was motivated by prejudice. In addition,
complainant contends that the record evidence shows that the reasons
for forcing her into a full-time position are untrue. In response, the
agency restates arguments previously made, including that the alleged
harassment was not motivated by complainant's protected groups, and
that the abolishment of her position was addressed in a previous EEO
complaint and therefore is subject to dismissal. The agency asks the
Commission to affirm the FAD.
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").
We begin by addressing the incident in the complaint, jointly, within
a harassment framework. Based on the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a
claim of harassment, complainant must prove that: (1) she was subjected to
harassment that was sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment; and
(2) the harassment was based on her membership in a protected class. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Although the animal and
"hissy fit" comments were unprofessional and understandably embarrassing
to complainant, the evidence in the record is insufficient to support a
finding that management's actions towards complainant were based on her
membership in a protected group. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
We note that we do not have the benefit of an AJ's findings after a
hearing, as complainant chose a FAD instead, and therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
As to issue (2), to the extent that it has not been previously addressed
in an EEO complaint, we note that 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). She 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). In this case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions, and complainant has not
persuaded the Commission that such reasons are more likely than not,
pretexts for discriminatory or retaliatory animus.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
April 28, 2009
__________________
Date
1 Complainant explains these "medical accusations" as follows: she learned
that the Step 2 Designee stated during the arbitration hearing, that when
she learned that her bid had been abolished, she was a "little shaky."
Complainant stated that although he does not know her, was not in the
facility at the time, and has no medical background, the Designee said
that nothing was medical wrong with complainant, but that she was having a
"hissy fit."
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0120080238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013