0120101942
09-09-2010
Carol V. Sweetenberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Carol V. Sweetenberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101942
Agency No. 4C250003409
DECISION
On April 5, 2010, Complainant filed an appeal from the Agency's March 3, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it 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 City Carrier at the Agency's Roanoke Carrier Annex facility in Roanoke, Virginia. On August 7, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), disability1 (back), and reprisal for prior protected EEO activity under a statute that remains unspecified in the record when:
1. On July 28, 2009, Complainant was issued a 14 day suspension; and
2. On September 25, 2009, Complainant was subjected to harassment when she was threatened with discipline for opening mail while in a postal facility, and she learned that mail intended for her had been opened by Agency officials.
At the conclusion of the investigation, the Agency provided Complainant 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 final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged.
Specifically, the Agency found that Complainant failed to establish a prima facie case of discrimination with regard to claim 1 but that, assuming arguendo that she established a prima facie case, Management articulated a legitimate nondiscriminatory reason for its action when the Supervisor of Customer Services (SCS: White, no claimed disability) said in the suspension notice that Complainant was issued the discipline for improper conduct consisting of failure to follow instructions and providing false information during an investigation. The notice said that SCS had told Complainant not to take photographs inside the facility or use ones that she had already taken but Complainant subsequently did use the photographs and then provided false information during an investigation into the matter. The Agency found that Complainant failed to show that the Agency's articulated reason for its action was merely a pretext for discrimination. With regard to claim 2, the Agency found that Complainant failed to establish a prima facie case of harassment because the notice of possible discipline was justified and no discipline was ever actually carried out.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she did not take any additional pictures after being told not to, and that most employees were unaware of the prohibition against taking pictures at work. With regard to the threat of discipline addressed in claim 2, Complainant contends that she followed Agency procedure and that the Agency's action constituted harassment. Complainant further argues that various management officials are providing false statements in order to justify their actions. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
14 Day Suspension
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corporation v. Green. 411 U.S. 792 (1973). For Complainant to prevail, she 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. Id. 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 action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Following this order of analysis is unnecessary, however, when the Agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether Complainant has established a prima facie case to whether she has demonstrated by a preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. Id.; see also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this case, the Commission finds that, with regard to claim 1, the 14 Day suspension, the Agency has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the July 28, 2009 notice of suspension stated that Complainant was being disciplined for improper conduct based on two charges: failure to follow instructions; and providing false information during an investigation. With regard to the first charge, the document noted that on June 17, 2009, Complainant had been told not to take any photographs inside the facility and not to use the ones she had taken but that three days later she included the photographs she had taken in a grievance proceeding. With regard to the second charge, the document noted that Complainant denied using the pictures at the grievance proceeding after being told not to use them a few days before. The document further noted that Complainant's denials were contradicted by the grievance record. SCS averred that her decision to issue the 14-day suspension was "based on the facts of the incident" and on the fact that Complainant's "actions were so egregious." Report of Investigation (ROI), Affidavit B, p. 2.
The Agency having articulated a reason for its action, the burden now falls on Complainant to show, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Burdine, 450 U.S. at 256. Following a review of the record we find that Complainant has failed to meet this burden. Complainant argues that the Agency did not engage in progressive discipline and she received a 14-day suspension without ever receiving a seven-day suspension. We find initially that SCS's explanation for the length of the suspension, namely that Complainant's "actions were so egregious," to be cursory and unhelpful. Ultimately, however, the brevity of SCS's response is insufficient to find that the Agency's articulated reason for its action is a pretext for discrimination. We note in this regard that Complainant says that she did not take any additional pictures after being told not to, but Complainant has not addressed the charge in the notice that alleged that she did use the pictures she had previously taken despite being told not to use them. Furthermore, Complainant's argument on appeal that most of her coworkers were unaware that taking pictures inside the facility violated Agency regulations does not tend to establish that the Agency's explanation for its action is a pretext for discrimination. Finally, we note that Complainant does not address the charge of providing false information.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will 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 [and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17 (1993).
Complainant alleges that she was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the 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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Following a review of the record we find that Complainant has not met her burden of establishing that she was subjected to harassment based on race, disability, or reprisal. The FAD found that Complainant was notified of a Pre-Disciplinary Interview because she opened mail at the facility, contrary to Agency regulations. The Agency noted that the notification of the Pre-Disciplinary Interview was not harassment but was justified because management legitimately believed Complainant had violated Agency rules. Complainant argues that she followed proper procedure with regard to the mail she received at the facility and that Agency officials provided false statements about the mail. Even assuming this to be true, Complainant has not shown that the Agency's actions either involved or were based on her protected classes, or that the behavior was severe enough to constitute discriminatory harassment. Nor do we find that the Agency's action in opening her mail to be so severe as to constitute discriminatory harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency engaged in discrimination based on race, disability and/or reprisal when she was issued a 14 day suspension, or that the agency's actions constituted discriminatory harassment. We therefore AFFIRM the FAD.
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
September 9, 2010
__________________
Date
1 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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0120101942
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101942