01A53309
05-12-2006
Carol A. Queen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol A. Queen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53309
Agency No. 4G-720-0090-03
DECISION
Complainant timely initiated an appeal from a final decision concerning her
formal EEO complaint of unlawful 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. The appeal is accepted pursuant to 29 C.F.R.
� 1614.405.
During the relevant time, complainant was employed as a Supervisor,
Customer Service at the agency's Jonesboro Carrier Annex in Jonesboro,
Arkansas. On April 7, 2003, complainant filed a formal EEO complaint.
Therein, complainant claimed that she was discriminated against on the
basis of sex (female)[1] when:
1) on January 13, 2003, she learned for the first time that the male
supervisors had two consecutive days off in a row, while her off-
days, as well as those of the other female supervisor, were split;
2) on January 27, 2003, she received a Letter of Warning for Failure
to Follow Instructions;
3) male supervisors were spoken to in a different tone and treated in
a "glad hand" manner compared to female supervisors who were spoken
to in a demanding manner;
4) female supervisors had been replaced with a male supervisor who was
less qualified to train ASP candidates; and
5) female supervisors were commanded, not asked, to give up their days
off while male supervisors were asked to work their day.
On May 2, 2003, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Formal EEO Complaint." Therein, the agency
accepted for investigation claims (1) and (2). The agency dismissed claims
(3) - (5) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim, finding that complainant was not aggrieved regarding the matters
identified therein.
At the conclusion of the investigation of claims (1) and (2), 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).
Initially, complainant requested a hearing. Subsequently, complainant
withdrew her hearing request and requested that the agency issue a final
decision.
On February 20, 2005, the agency issued a final decision, finding no
discrimination. The agency found that complainant failed to establish a
prima facie case of sex discrimination because she failed to show that a
similarly situated person outside of her protected class was treated more
favorably. The agency found, however, that assuming complainant
established a prima facie case of sex discrimination, complainant failed to
show that management's articulated reasons for its actions were a pretext
for discrimination.
With respect to claim (1), complainant asserted by affidavit during the
investigation that on January 13, 2003, the Postmaster,[2] in a "menacing
and demeaning" manner, told complainant and the other female supervisor
that they had "failed to do [their] jobs for which they were paid good
salaries to do," and added that "there will be no more days off for you
girls until you learn to do your jobs correctly." She said that the
Postmaster continued this "tirade" for about 15 minutes. She said that
sometime later, when she and the other female supervisor discussed this
incident, the other supervisor complained to her that it was unfair that
they were losing their days off when all the male supervisors not only were
keeping their off-days, but also had two consecutive days off, while theirs
were split. Complainant claimed that this was the first time she was aware
of the fact that the male supervisors had two consecutive days off.
The Postmaster, in his affidavit, stated that complainant's days off have
always been Sunday and Wednesday and "that is the same way the job was
posted 10/25/01." The Postmaster stated "although I could have given
[complainant] a change of schedule, she never asked for one." The
Postmaster conceded that some of the male supervisors had consecutive days
off but explained that "supervisor schedules are set to maximize
effectiveness and are for different functional areas." The Postmaster
stated that an identified male Tour One Supervisor's days off were Tuesday
and Wednesday because Tour One was the late night shift where it is
difficult to rest "so it is vital that he has days off together." The
Postmaster stated that an identified male employee in charge of Window
Services had days off on Saturday and Sunday so that he would be "available
during our heaviest business days - Monday through Friday." The Postmaster
stated that an identified male Maintenance Supervisor's days off were
variable because "he has not worked his regular job in some time as he has
been filling in on the plant tours as needed." Finally, the Postmaster
stated that he had a borrowed supervisor working for him who lived a
distance away. The Postmaster stated "I elected to assign the borrowed
supervisor from South Arkansas to Saturday and Sunday off so that he could
go home on the weekend and be with his family. That seemed the right thing
to do, since he was here to assist us."
With respect to claim (2), the former Acting Manager of Customer Services
(former Manager) stated that on January 3, 2003, he was detailed to the
Jonesboro Carrier Annex and that complainant reported to him during his
detail. The former Manager stated that he was the deciding official who
issued complainant a Letter of Warning (LOW) for "failure to follow
instructions." Specifically, the former Manager stated that complainant
was issued a LOW "for not properly maintaining the Rural Carriers PS Forms
3972." The former Manager stated that all of his management staff,
including complainant, "[had] been made aware on numerous occasions, the
requirement to maintain hardcopy 3972 information." The former Manager
stated that the Form 3972 was used as a tool to follow up and correct
attendance issues with employees. He stated that a review of the agency
records revealed that complainant had not completed the required forms from
November 2002 through January 2003. The former Manager said he had
requested a letter of warning for one of the male supervisors for the same
offense, but it was never issued because his detail expired prior to
receiving the necessary documentation from Labor Relations.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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).
After careful review of the record, including all statements submitted on
appeal, the Commission determines that agency management articulated
legitimate, nondiscriminatory reasons for the actions taken. With regard
to claim (1), while some male supervisors had consecutive days off, the
Postmaster articulated legitimate business reasons for the scheduling.
Moreover, complainant's off days were apparently established when she
assumed her position in 2001, and there is no evidence that complainant
ever requested a change in the schedule. With regard to claim (2), the
record establishes that the letter of warning was issued because
complainant failed to follow management instructions concerning the
maintenance of proper 3972 forms. Complainant has not established that she
did not commit this offense, and the record shows that a similarly situated
male supervisor would have also been issued a similar warning letter had
the former Manger's detail not ended. Furthermore, the investigation shows
that other male supervisors were issued disciplinary actions for other
infractions during this same period. Complainant has failed to produce
adequate evidence to prove, by a preponderance of the evidence, that these
articulated reasons were a pretext for discrimination.[3]
Therefore, the Commission determines that the agency's final decision
finding no discrimination concerning claims (1) and (2) was proper and is
AFFIRMED.
Claims (3) - (5)
Complainant claimed that she was discriminated against on the basis of sex
when: male supervisors are spoken to in a different tone and treated in a
"glad hand" manner compared to female supervisors being spoken to in a
demanding manner (claim (3)); female supervisors have been replaced with a
male supervisor who was less qualified to train ASP candidates (claim (4));
and female supervisors were commanded, not asked, to give up their days off
while male supervisors were asked to work their day (claim (5)). In its
May 2, 2003 partial dismissal, the agency dismissed claims (3) - (5)
pursuant to 29 C.F.R. � 1614.107(a)(1) finding that complainant was not
aggrieved.
Upon review, we agree with the agency that the alleged incidents do not
address a personal loss or harm regarding a term, condition or privilege of
complainant's employment as a result of the alleged incidents. See Diaz v.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Therefore, we find that the agency properly dismissed claims (3) - (5) for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's dismissal of claims (3) - (5) was proper and 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
May 12, 2006
__________________
Date
Carol A. Queen
2810 Finch Road
Paragould, AR 72450
C.B. Weiser
POB 427
Marshall, TX 75671
USPS Southwest
Mgr, EEO Compl. & Appl
POB 223863
Dallas, TX 75222
Attn: Terry Miller
-----------------------
[1] On appeal, complainant, through counsel, asserts that she attempted to
amend her complaint to add reprisal as a basis by stating in her affidavit
submitted during the investigation that the Postmaster was also motivated
to engage in the alleged adverse treatment described in her complaint by
retaliatory animus for her participation in an earlier sexual harassment
complaint filed against him. 29 C.F.R. � 1614.106(d) provides that a
complainant may amend her complaint at any time prior to the conclusion of
the investigation to include issues or claims like or related to those
raised in the complaint. It appears, however, that the agency, when it
issued its final decision did not recognize or address this amendment
sought by complainant. However, on appeal the agency stated that
complainant "also failed to offer any persuasive evidence to show that
management's explanation for its actions was untrue or otherwise a pretext
for reprisal."
[2] Complainant also said she had participated in an earlier sexual
harassment complaint against the Postmaster and he harbored retaliatory
animus towards her.
[3] With regard to complainant's attempt to add reprisal as a basis to her
complaint, the Commission will assume complainant established a prima facie
case of retaliation. However, this initial inference was rebutted by the
agency's articulation of legitimate reasons for the actions taken, which
complainant did not prove were pretext for unlawful retaliation.