Cynthia D. Marks, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 14, 2001
01993731 (E.E.O.C. Nov. 14, 2001)

01993731

11-14-2001

Cynthia D. Marks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cynthia D. Marks v. U.S. Postal Service

01993731

11-14-01

.

Cynthia D. Marks,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01993731

Agency No. 4H-350-0206-97

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

on the basis of sex (female) in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

For the reasons stated herein, the agency's FAD is affirmed.

According to the record, complainant was employed as a Window Clerk,

PS-5 at an Alabama facility of the agency. In May 1997, believing she

was a victim of discrimination, complainant sought EEO counseling and,

subsequently, filed a complaint alleging that the agency discriminated

against and harassed her when (1) on March 10, 1997, her postmaster

was hostile toward her when she asked questions about a permit system

computer (computer) she was operating due to the absence of a coworker,

(2) on March 12 and April 2, 1997, two of complainant's non-scheduled

days, her supervisor forced her to report for overtime work , and (3)

on April 22, 1997, her supervisor issued her a Letter of Warning (LOW)<1>

because she failed to report for the overtime.

The postmaster stated, regarding issue (1) that he was not hostile but

instead was impatient with complainant when she repeatedly made errors

on the computer and that he displayed the same impatience with males

who also made repeated errors on the computer. Regarding issues (2)

and (3), complainant's supervisor stated that complainant was asked

to report to work on two of her non-scheduled days because she was the

only available clerk and it is within supervisory authority, under the

collective bargaining agreement between the agency and representative

union, to order a clerk

to work on a non-scheduled day. He stated that complainant received

the LOW because she did not report to work as she was ordered to do.

An investigation was conducted and complainant was informed of her

right to choose either a hearing before an EEOC administrative judge

(AJ) or an immediate FAD. Complainant initially requested a hearing

but later withdrew that request. The agency issued a FAD finding no

discrimination because complainant failed to establish a prima facie

case of discrimination regarding all three issues and failed to establish

pretext regarding issue (2).

Regarding complainant's claim of harassment, the Commission has repeatedly

found that unless the conduct is very severe, a group of isolated

incidents will not be regarded as creating a hostile work environment.

See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030

(July 12, 1996). In the instant case, the complaint challenged several

isolated incidents which were not severe enough to state a claim of

harassment. See, e.g., Zhang v. United States Postal Service, EEOC

Request No. 05970085 (July 17, 1998) (supervisor yelling at complainant

on one occasion is insufficient to demonstrate that complainant's

work environment was altered so as to state a claim of harassment).

The action alleged in issue (1) was taken by the Postmaster, whereas,

the actions alleged in issues (2) and (3) were taken by complainant's

supervisor. There is no evidence that complainant's supervisor was aware

of the hostility allegedly displayed by the Postmaster two days earlier.

The action alleged in issue (3) was discipline issued in accordance with

agency policy. Complainant failed to establish discriminatory harassment

by the agency.

Complainant also alleged disparate treatment based on sex. When a

complainant relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The initial burden is on the complainant to establish a prima facie

case of discrimination. Id. at 802. The burden then shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. Id. If the agency is successful, the complainant

must then prove, by a preponderance of the evidence, that the legitimate,

nondiscriminatory reason articulated by the agency is merely pretext

for its discrimination. Id. at 804.

Because the agency articulated legitimate, nondiscriminatory reasons for

its actions, i.e., impatience with consistent mistakes by both female and

male clerks, business necessity, and appropriate discipline for failing

to report, we may proceed directly to determining whether complainant

satisfied her burden for showing pretext. Haas v. Department of Commerce,

EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service

Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this

in one of two ways, either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing

that the agency's proffered explanation is unworthy of credence.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Essentially, the fact finder must be persuaded by the complainant that

the agency's articulated reasons were false and that its real reason

was discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502,

515 (1993).

Complainant stated that she was made the sole operator of the computer

because she was better in operating it than her male coworkers. She

further stated that the Postmaster did not display the same hostility

toward males when they operated the computer. Complainant indicated

that the agency's articulated reasons for issues (2) and (3) were false

because there were coworkers who held other positions who could have

worked her two non-scheduled days and there were male coworkers who were

approved for unscheduled leave on their regularly scheduled work days.

The Commission finds that complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. The fact that complainant was made

the sole operator of the computer displays the Postmaster's impatience

with mistakes made by others on the computer. In addition, the record

is void of objective evidence to prove that the Postmaster was hostile

toward complainant when she did ask questions.

Also, the coworkers that complainant cites as comparators for issues

(2) and (3), i.e., C-1 and C-2, were not similarly situated to her.

Complainant did not want to work overtime because she had a Family

and Medical Leave Act (FMLA) certification on file with the agency,

which stated �would not recommend overtime.� The supervisor indicated,

however, that he interpreted this as leaving overtime to his discretion;

therefore, he asked complainant to report to work on her non-scheduled

days. He stated that he did not have any other qualified person to

work and it was the busiest time of the month. Complainant informed

the supervisor that she would not report unless she was given a �direct

order� to do so. According to the supervisor, he gave complainant

a �direct order� to report to work on her non-scheduled days, but,

as previously noted, she failed to do so. We find that the facts

surrounding C-1's and complainant's failure to report to work differ.

Unlike complainant, C-1 was not given a direct order to report to work

after having had a discussion with his supervisor. Finally, we note

that C-2 held a different position from complainant's.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically addressed in this decision, the Commission AFFIRMS the

agency's finding of no discrimination.

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

__11-14-01________________

Date

1Initially, the agency issued complainant a 7-day suspension but it was

later reduced to a LOW.