0120073595
04-12-2010
Latanya Skinner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Latanya Skinner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120073595
Agency No. 1K-276-0009-06
DECISION
On August 16, 2007, complainant filed an appeal from the agency's July
31, 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Production and Distribution facility in
Raleigh, North Carolina. On January 19, 2007, complainant filed an EEO
complaint alleging that she was discriminated against and subjected to
a hostile work environment on the bases of sex (female), color (brown),
and in reprisal for prior protected activity under Title VII when:
1. In August and September 2006, complainant's acting supervisor (S1)
assigned her to work on the dock when no other females were required to
work on the dock;
2. At various times from August 26, 2006 through March 2007, S1 made
offensive comments and spoke to her in a derogatory manner;
3. On January 30, 2007, S1 pushed a mail container toward her, looked,
laughed, and walked away;
4. On February 24, 2007, complainant's son called with an emergency,
but S1 waited three hours before giving her the message;
5. On March 5, 2007, S1 accused her of staying in the bathroom for twenty
minutes and addressed her in a disrespectful tone;
6. A co-worker was allowed to go on lunch breaks for up to an hour,
while complainant was not allowed to extend her lunch, and;
Complainant also alleges that she was subjected a hostile work environment
in reprisal for prior protected EEO activity under Title VII when:
7. On December 15, 2006, the Maintenance Operations Manager (M1) cancelled
her approved change of schedule.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).1
The FAD assumed arguendo that complainant had established a prima facie
case of discrimination and harassment on the alleged bases and found
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions. The FAD then found that complainant failed to establish
the agency's reasons were pretextual and therefore held that complainant
had not been subjected to discrimination or a hostile work environment
on the alleged bases.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that she has alleged sufficient facts to
establish claims for sex discrimination and a hostile work environment.
Accordingly, she requests that we overturn the FAD. The agency requests
that we affirm the FAD.
ANALYSIS AND FINDINGS
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").
Disparate Treatment
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant 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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), S1 asserts
that complainant was required to do the same jobs as everyone else in his
section and he informed her that if she was unable to perform certain
jobs, she needed to address those limitations with upper management.
Report of Investigation (ROI), S1's Aff. at 2. S1 states that complainant
told him that she should not have to do certain jobs because she is
a female. Id. S1 affirms that he told complainant that there are no
male or female jobs, only mail handler jobs. Id. S1 adds that jobs
are assigned by bids, seniority and qualifications. Id.
As to claim (2), S1 denies making any of the alleged comments and that
his normal method of addressing people was by their first or last
name. Id. at 5. S1 asserts that complainant has corrected him for
mispronouncing her name, calling her by her maiden name, and for not
addressing her as "Ms." Id. The Acting Manager (AM) maintains that
he never heard S1 make any of the alleged offensive comments nor did
complainant ever complain to him that S1 had made any offensive comments.
ROI, AM's Aff. at 3. AM states that he met with complainant and S1
about complainant not following instructions and complainant complained
that S1 had addressed her as "Hey, yo." Id. AM avers that S1 denied
addressing complainant in that manner; nevertheless, AM instructed S1
to ensure he distinctively addressed complainant by her name. Id.
As to claim (3), S1 denies any knowledge of complainant's allegation
that he almost struck her with a mail container. ROI, S1's Aff. at 7.
AM asserts that he also has no knowledge of the incident and complainant
never reported the incident to him nor filed a Report of Hazard. ROI,
AM's Aff. at 4. As to claim (4), S1 asserts that he did not receive a
phone call from complainant's son and he had no knowledge of an emergency
phone call involving complainant's son. Id. at 17. S1 claims that he
only saw complainant that day when she clocked in and when he returned
to his desk later that day complainant had left a leave slip. Id.
Regarding claim (5), S1 states that he monitored complainant's absences
from her work area because her bathroom usage had become excessive and
she failed to tell him when she left the area. ROI, S1's Aff. at 5.
S1 claims that complainant often is away from her work area for 15-20
minutes and that it had been brought to his attention that complainant
used a cell phone while in the bathroom. Id. S1 denies using a
disrespectful tone and affirms that he told complainant that she should
submit documentation if she had a medical problem. Id. at 6. S1 avers
that agency policy states that employees should use the bathroom during
lunch and breaks and if there is a need before or after lunch or breaks,
the employee should notify their supervisor. Id. at 6.
As to claim (6), S1 claims that he told complainant that she needed to
be back from her breaks on time and that if she kept coming back from
break late, he would have to take her to the manager's office. ROI,
S1's Aff. at 6. S1 adds that complainant responded that he was not a
supervisor, he was just a 204B (acting supervisor). Id. S1 asserts
that he gave a service talk to everyone in the operation about breaks
and lunches and everyone is aware of the agency's policies. Id. at 7.
S1 stresses that it is rare for anyone to take a long lunch break since
the majority of the section goes on break at the same time and it would
be easy to identify who was late. Id. at 6.
As to claim (7), M1 states he initially approved complainant's schedule
change so that she could care for her son. ROI, M1's Aff. at 2-3.
M1 asserts that he made it clear in his letter to complainant before
approving the schedule change that she was expected to return to her
assigned schedule after the 30-day temporary schedule change. See id. and
ROI, Exh. 5. M1 asserts that each schedule change request is handled on
an individual basis and that he approved an extension beyond the initial
30 days. M1's Aff. at 3. M1 stresses that he spoke to complainant on
December 26, 2006 and told her she had been given almost two months to
rectify the situation and that she was expected to report back in her
assigned schedule the next day. Id. at 4. M1 asserts that the comparator
employees cited by complainant had approved schedule changes because of
details and the availability of limited-duty work. Id. at 7-10.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory incidents, complainant now bears the
burden of establishing that the agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that aside from complainant's bare assertions, the record is devoid of
any persuasive evidence that unlawful discrimination was a factor in any
of the agency's actions. At all times the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to carry
this burden. Accordingly, we find that complainant has failed to show
that she was discriminated against or retaliated against as alleged.
Hostile Work Environment
It is well-settled that 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.
Hurston v. United States Postal Service, Appeal No. 01986458 (January
19, 2001), (citing Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998)). To establish a prima facie case of
hostile work environment, a complainant must show that (1) s/he belongs
to a statutorily protected class; (2) s/he was subjected to harassment
in the form of unwelcome verbal or physical conduct because of her/his
protected class; (3) the harassment complained of was based on her/his
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. See 29 C.F.R. � 1604.11; Davis
v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14, 2003).
Complainant must show that the actions complained of were taken because
of or based on her protected status and are sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
A hostile work environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). An alteration
to an employee's working conditions exists if a tangible, discrete
employment action is taken, e.g., hiring, firing, transfer, promotion,
non-selection, or the agency's actions were sufficiently severe and/or
pervasive to create a hostile work environment.
We conclude that complainant did not prove that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work
environment and that she also failed to prove the agency's decisions
and actions were unlawfully motivated by her sex, color, or in reprisal
for her prior protected activity. Moreover, complainant has not shown
that the alleged harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Accordingly, complainant has not shown that she was
subjected to a hostile work environment on the alleged bases.
CONCLUSION
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 12, 2010____________
Date
1 In her brief in support of her appeal, complainant asserts that she
timely submitted a request for a hearing. Complainant failed, however,
to proffer any proof of submitting the request aside from an affidavit
and a copy of the form. We find that complainant failed to submit
sufficient evidence establishing that she timely requested a hearing.
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0120073595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073595