0120072991
07-25-2007
Marchelle D. Bertram, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marchelle D. Bertram,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072991
Agency No. 4C450007804
DECISION
On February 22, 2005, Marchelle D. Bertram (complainant) filed an
appeal from the January 5, 2005, final decision (FAD) of the United
States Postal Service (agency) concerning her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. After review of
the record, the Commission vacated the agency's decision and directed
the agency to perform a supplemental investigation.1 Bertram v. USPS,
EEOC Appeal No. 0120052665 (February 23, 2007). On June 4, 2007, the
agency transmitted the supplemental investigation. The Commission will
now address the merits of complainant's appeal.
At the time of her complaint, complainant worked as a window clerk (PTF)
at the agency's Newport, Kentucky, facility. She sought participation
in the agency's 204B program and began training in January 2004, but
she was subsequently removed. In her formal complaint, she alleged
discrimination based on sex when, from January-May 2004, she received
"inferior training," and on May 3, 2004, she was removed from the
training program. The agency, through the Postmaster (PM), contended that
complainant's training was not inferior, in that, she moved through the
same training and rotations as all other candidates, and she was removed
because of her disrespectful and discourteous behavior and negative
attitude toward agency managers, co-workers, and agency customers.
The PM stated that she began her tenure at Newport in December 2003.
In her affidavit statement, the PM explained that complainant was
removed from the 204B program for several reasons: (i) complainant's
unprofessional behavior with management, other employees, and customers;
(ii) her disrespectful and negative behavior; (iii) her inability to get
along with other employees; (iv) that she brought down the morale of the
units with whom she worked; (v) that she had a loud and hostile manner;
(vi) that she was impossible to train due to her poor attitude; and (vi)
that "she also made documented allegations of sexual harassment towards
another employee, and I do not feel that it is in the best interest of
the [agency] to have her supervise this employee." Affidavit of PM,
October 27, 2004. There was no further information in the record, nor
did the PM explain, the "documented allegations of sexual harassment,"
such as the content of the allegations and the forum in which they were
raised, i.e., in the EEO administrative process, internal agency redress,
or by way of the grievance procedure.2
For reasons set out in Appeal No. 0120052665, we determined that it
was necessary to clarify the nature of these "documented allegations"
and the forum in which they arose. The Commission ordered the agency
to conduct a supplemental investigation "to determine the nature of the
'documented allegations' referred to by the PM in her affidavit statement
of October 27, 2004," and all related documents and records. We also
noted that the record in 0120052665 contained a letter dated June 27,
2004, from complainant to the PM concerning the unwanted attentions
of a male co-worker (DK); however, because this letter was dated after
complainant's May 3, 2004, removal from the program, we concluded it was
unlikely the source of the "documented allegations." As revealed in
the supplemental investigation, however, the PM stated that the June 27,
2004, letter contained the "documented allegations" she referenced, having
received it prior to drafting her October 2004, affidavit. The PM further
stated that she knew peripherally of the tensions between complainant
and DK but was not aware of any formal action taken by complainant.
The record now before us does not show that complainant took formal action
with regard to her complaints of harassment by DK prior to May 3, 2004,
nor did complainant maintain that she had done so.3
Because the PM's reference to "documented allegations" was based
on complainant's letter of June 27, 2004, which she received after
complainant's removal from the 204(B) program, we conclude that there
is no evidence that the PM's affidavit, dated October 27, 2004, showed
direct evidence of discrimination and find that complainant stated
a claim of disparate treatment based on sex. In general, claims of
disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, s/he 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, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once complainant has established a prima facie
case, 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 reason(s) for its
action was 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).
For purposes of further analysis, we assume, arguendo, but without
so finding, that complainant established a prima facie case based on
sex with regard to her claim that she received inferior training and
was removed from the 204B program. In response, the agency explained,
through the PM, that complainant's training was not inferior, in that,
she moved through the same training and rotations as all other candidates,
and she was removed because of her disrespectful conduct toward agency
managers, her impudence to her co-workers, and her discourtesy toward
the agency's customers. We find that the agency has met its burden and
articulated legitimate, nondiscriminatory reasons regarding her training
and removing complainant from the 204B program.
In the McDonnell Douglas scheme, once the agency has articulated its
reasons, the ultimate burden of persuasion returns to the complainant
to demonstrate by preponderant evidence that the reasons given by the
agency for its actions are pretext, that it, a sham or disguise for
unlawful discrimination. The complainant must show that the agency's
action was more likely than not motivated by discrimination, that is, that
the action was influenced by legally impermissible criteria, i.e., sex.
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against her, complainant cannot prevail.
Complainant stated that she was treated differently than two male
employees who received better training and become supervisors.4
The PM stated that the two males had received training six to eight
years previous to complainant's training and under a different PM,
with different supervisors and managers; in addition, the PM stated
that the two males did not display disrespectful conduct toward agency
managers, impudence to co-workers, and discourtesy toward the agency's
customers. In order to be considered "similarly situated," employees
must be similarly situated in all relevant aspects of employment.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985); O'Neal
v. United States Postal Service, EEOC Request No. 05910490 (July 23,
1991) (employees are similarly situated when they are subject to the same
supervisor, perform the same job function, are on the same tour of duty
and are disciplined during approximately the same period). We find that
complainant was not similarly situated to the two male employees cited.
Moreover, other than her claims of discrimination, complainant did not
demonstrate that the agency's explanation was not its true reason for
its action and that the reason was based on discriminatory animus because
of on sex.
Based on a thorough review of the record in this matter, the contentions
on appeal, including those not specifically addressed herein, and the
supplemental investigation by the agency, we find that complainant has
not shown that she received inferior training and was removed from the
204(B) program based on her sex.
CONCLUSION
Accordingly, the agency's FAD 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
_____7-25-07_____________
Date
1 The Order in 0120052665 also afforded complainant an opportunity to
comment on the agency's supplemental investigation, but she did not file
a response.
2 In her appeal, complainant raised the possibility that her removal from
the 204B program was taken, at least in part, based on direct evidence
of discrimination. If so, analysis of her claim would require a "mixed
motive" analysis. Consequently, it was important to know the nature
of these "documented allegations" and the forum in which they arose to
determine if complainant's statement was, in fact, protected activity.
Title VII protects employees who oppose, through explicit or implicit
communication, a practice made unlawful by Title VII or who participate
in covered proceedings, e.g., filing an EEO complaint or threatening
to do so where the adverse action is based on a retaliatory motive and
is reasonably likely to deter protected activity. EEOC New Compliance
Manual, Section 8-II.
3 Since the PM was unaware of any action by complainant with regard to
her claims of sexual harassment, complainant cannot establish a prima
facie case based on reprisal. See Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996).
4 At the time of her complaint, one was a supervisor, and one acted as
a 204B supervisor.
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0120072991
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120072991