0120131737
04-24-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120131737
Agency No. 1F-908-0008-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 15, 2013 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Support Clerk at the Agency's Long Beach, California Processing and Distribution Center (P&DC).
On June 20, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of sex (female) when:
on January 18, 2006, she was harassed and talked about by co-workers and her supervisor.
On March 23, 2006, Complainant and the Agency entered into a settlement agreement. By letter to the Agency dated November 22, 2010, Complainant alleged that she received no consideration with respect to the settlement agreement because it did not confer on her any benefit that she was not already entitled to as a matter of law, and requested that the underlying complaint be reinstated. On January 3, 2011, Complainant also alleged that the Agency failed to comply with the terms of the agreement. On appeal, the Commission vacated the Agency's final decision and remanded the case so the underlying EEO complaint could be reinstated for further processing in accordance with its order. [Complainant] v. U.S. Postal Service, EEOC Appeal No. (August 3, 2011).
Following the Commission's decision, the Agency resumed the processing of the settled matters from the point processing ceased pursuant to 29 C.F.R. Part 1614. After the investigation of the 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 Administrative Judge (AJ).1 In accordance with Complainant's request, the Agency issued a final decision on February 15, 2013, pursuant to 29 C.F.R. � 1614.110(b), which is the subject of the instant appeal.
In its February 15, 2013 final decision, the Agency found no discrimination. Specifically, the Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the basis of sex. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant, on appeal, argued that the Agency erred finding no discrimination. For instance, Complainant stated her former supervisor and two Agency officials did not respond to the investigator's affidavit requests. Complainant further stated "the truthful testimony of [supervisor], had it been provided, would show that [supervisor] was fully aware that the harassment was real, severe, and demeaning; but he chose not to take any corrective action."
Further, Complainant stated that the Building Equipment Mechanic, also her co-worker, "was aware of a situation that was far from trivial. He was aware of something wrong in the workplace that was bad enough to get out of control. Indeed, in common street language, when something has gotten out of hand, it has become far worse than it ever should be."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Operations Industrial Engineer stated that during the relevant period he was the Manager Maintenance Operations (former manager) at the Long Beach P&DC. The manager stated that he had no direct working relationship with Complainant. However, he stated further that he "did have incidental communication approximately once a day when my responsibilities required I enter the parts room where [Complainant] worked." With respect to Complainant's claim that on January 18, 2006, she was harassed and talked about by co-workers and former supervisor, he had "no first hand knowledge of this incident and little knowledge at all other than some comment was allegedly made during a morning building maintenance crew meeting. I do not know what comment was made or who made the comment but [supervisor] was present."
Further, the manager stated that he was unaware of any allegations of continuous harassment "but I am aware that [Complainant] has alleged separate harassment complaints against different people. In 2011 while I was maintenance at Long Beach PDC, [Complainant] came to me in my office regarding alleged harassment by her manager [Manager] who was a direct report to me at the time. In the course of investigation that allegation, I asked the Complainant if she was having any trouble with [a named female co-worker] who had been a party in a previous allegation. She responded that she had not had any trouble with that in a long time thankfully. In regard to the allegation against [Manager] that also named me as a party since I was his manager, it is my understanding that the case was resolved...the Complainant has made a current allegation against her new supervisor [supervisor]."
The Building Equipment Mechanic, also Complainant's co-worker, stated that during a January 18, 2006 morning standup talk, the former supervisor "told everyone that because of [a named male co-worker's] accident, we would no longer go out for parts or check prices for tools and parts. They have the people and it's their job, that's what they are paid for. [Another Building Equipment Mechanic] said to get [Complainant] and [female co-worker] off the phone to do their job and if you tell [Complainant] what a pair of channel locks are, [then] two weeks later, you have to explain it to her again, [male co-worker] said something like '[Complainant] ain't worth a damn.' I felt [former supervisor] let it get out of hand and did nothing to stop it. He also had no business to come in and say what he said since when he was in there, he would go get [injured male co-worker] to run parts and not go through channels. [Complainant] also told me to watch what I say or she would bring me up on charges."
The MOS clerk, also Complainant's co-worker, stated that when she asked the Building Equipment Mechanic about the January 18, 2006 morning standup talk because "I knew he was one of the ones that had chirped in, I questioned him on the standup. I told him that I had heard he was bashing our [department]. He told me his version of what was said that day. Saying [supervisor] had started the morning meeting with the fact that if [injured co-worker] hadn't been doing our job, he wouldn't have gotten into an accident. 'According to [Building Equipment Mechanic], since the door had already been opened, he used [Complainant's] name stating she doesn't know her job and if you teach her something, she forgets it in 2 weeks time. That [male co-worker] agreed that [Complainant] didn't know her job and said that [Complainant] and [female co-worker] are on the phone constantly.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her sex.
We note that Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not obtaining affidavits from her former supervisor and two named Agency officials. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted a sufficiently adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to 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 (M0610)
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), at 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 (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 (Z0610)
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 24, 2014
__________________
Date
1 The record reflects that despite a request by the investigator, Complainant's former supervisor failed to submit a response to the questions presented because he had retired from Agency employment.
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0120131737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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