0120070557
03-25-2009
Amelia Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amelia Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070557
Agency No. 4H300002606
DECISION
On November 3, 2006, complainant filed an appeal from the agency's October
11, 2006 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal 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 all times relevant to this complaint, complainant was a Customer
Service Supervisor, EAS-17, located at the agency's Howell Mill
Post Office in Atlanta, Georgia. Prior to August 2005, complainant
was acting Manager of Customer Service at the Howell Mill Station.
Complainant applied for permanent placement in the Manager of Customer
Service position, but the position was instead awarded to S1 (female,
African American). When S1 began in the position, complainant was
moved back to her position as a Customer Service Supervisor, and S1 was
complainant's supervisor.
The record discloses that soon after S1 assumed her new position,
animosity began between complainant and S1. S1 felt that complainant
was angry because she was not chosen for the Manager position, and was
intentionally trying to sabotage S1's employment by making decisions
without S1's consent and going directly against policies that S1 put
in place upon her arrival. S1 would often confront complainant during
staff meetings in front of other supervisors, which often resulted in
verbal altercations. Complainant stated that S1 acted like a "psychotic
fool" during staff meetings and would shout at her, berate her, and
threaten her.
Complainant alleges that S1 made many discriminatory comments to her
such as, "I use to beat little short bitches like you every day in high
school, and it ain't no different now. I'll fight a nigger in a minute,
so don't cross my damn path"1; "I don't give a fuck about none of you,
this is your damn job, and we can take it to a personal level if you want
to"; and "I will bust you in your damn head." S1 denies making these
comments and using offensive language, including the racial epithet.
Further, there were no witnesses identified who could corroborate that
these comments or any offensive language was ever uttered by S1.
Complainant told her Area Manager that she needed to be transferred to
another facility because there were issues with management, and she felt
that her presence in the station was the problem. Complainant did not
tell management that she wanted to be moved because of discrimination or
harassment by S1. Ultimately, complainant was moved to another facility
on November 10, 2005.
On February 3, 2006, complainant filed a formal complaint alleging
harassment and discrimination on the bases of race (African American),
sex (female), age (DOB: 08/27/1961), and physical disability (deformed
left leg) when:
1. Between August 2005, and November 10, 2005, her supervisor shouted
at her, yelled orders at her, belittled her, and threatened her; and
2. Between August 2005, and November 10, 2005, her supervisor made
discriminatory comments to her such as:
a. "I use to beat little short bitches like you every day in high school,
and it ain't no different now. I'll fight a nigger in a minute, so
don't cross my damn path";
b. "I don't give a fuck about none of you, this is your damn job, and
we can take it to a personal level if you want to"; and
c. "I will bust you in your damn head."
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). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged. Complainant now appeals to the
Commission.
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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. See St Mary's Honor
Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas,
411 U.S. at 802. In order to establish a prima facie case under the
Rehabilitation Act, complainant must demonstrate that: (1) she is an
"individual with a disability;" (2) she is "qualified" for the position
held or desired; (3) she was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001).
In order to establish a prima facie case under Title VII and the
ADEA, complainant must show the following: (1) she was a member of
the protected class; (2) an adverse action was taken against her; (3)
a causal relationship existed between her membership in the protected
class and the adverse action; and (4) other employees outside of her
protected class were treated differently. McDonnell Douglas, 411 U.S. at
802; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying McDonnell Douglas analysis to ADEA claim).
To establish a prima facie case of harassment, complainant must show
that: (1) she is a member of a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct related to her
membership in that class; (3) the harassment complained of was based
on her membership in that class; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Roberts
v. Department of Transportation, EEOC Appeal No. 01970727 (September 15,
2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
Once complainant establishes a prima facie case of discrimination,
the second step in the analysis shifts the burden on the agency to
articulate a legitimate, nondiscriminatory reason for the challenged
actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411
U.S. at 802. Finally, it is complainant's burden to demonstrate by
a preponderance of the evidence that the agency's action was based on
prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for
discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;
McDonnell Douglas, 411 U.S. at 804.
Complainant's disparate treatment and hostile work environment claims fail
because she has not established a prima facie claim of discrimination
or harassment on any basis. As mentioned above, she has the initial
burden of presenting facts that, if unexplained, reasonably give rise
to an inference of discrimination. In other words, she must show
that a prohibited consideration was a factor in an adverse employment
action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Here,
the record does not support a finding that the actions were motivated by
discriminatory animus. Instead, the record establishes that there was
more likely than not a personality conflict between complainant and S1.
Further, the record supports the agency's assertion that the animosity
between complainant and S1 was motivated by complainant's anger that she
was not chosen for the Manager position, and not because of discriminatory
animus by S1. Besides complainant's bare allegations, the record does
not support her claim that S1 made derogatory and discriminatory comments
towards complainant, including using racial epithets. Even assuming
that S1 did berate, belittle, and shout at complainant, there is no
evidence in the record that would establish that those actions were
based on discriminatory animus towards complainant's protected classes.
Therefore, we AFFIRM the agency's final decision.
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
March 25, 2009
Date
1 We note that complainant asserts in the record that this particular
comment was made because S1 had discriminatory animus on account of
complainant's height. However, we will consider this an allegation of
racial discrimination because of the alleged use of a racial epithet.
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0120070557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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