0120092048
08-27-2009
Catherine A. LaMaur, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Catherine A. LaMaur,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092048
Hearing No. 460-2008-0043X
Agency No. 4G770028107
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 26, 2009 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. Complainant alleged
that the agency discriminated against her on the bases of race (Caucasian)
and reprisal for prior protected EEO activity under Title VII when:
(1) on March 29, 2007, her postal vehicle was purportedly sprayed with
insect repellant for the second time, and management tolerated this
action, and (2) on April 24, 2007, she was issued a 7-day suspension.
Complainant also added a claim of retaliation for not being allowed to
timely meet with her representative.
The record indicates that as a letter carrier, complainant had a postal
vehicle assigned to her route. On complainant's days off, a relief
carrier would be assigned to cover her route and would use the postal
vehicle assigned to that route. Complainant's co-worker worked as a
relief carrier at the station, and was assigned to cover complainant's
route on March 29, 2007. On March 30, 2007, complainant reported to
the Officer in Charge (OIC) that on March 29, 2007 the postal vehicle
assigned to her route was sprayed with an "irritant." Complainant told
the OIC that the vehicle was "saturated."
An EEO investigator processed the complaint, and a copy of the
Investigative Report was transmitted to the complainant on November 14,
2007. Although complainant initially requested a hearing, on January 28,
2008 the Administrative Judge ordered the complaint withdrawn (Without
Prejudice) based on an agreement between complainant and the agency.
Complainant was given until May 28, 2008 to reinstate her hearing request.
Complainant failed to do so, and thus the agency issued its final decision
pursuant to 29 C.F.R. 1614.110(b).
In its final decision, the agency found no discrimination. The agency
determined that management had cumulatively recited legitimate,
nondiscriminatory reasons for its actions. The OIC stated that
complainant complained that her vehicle had been sprayed by an irritant
after her route was delivered by a relief carrier. In response,
he investigated and determined that this relief carrier had used an
over-the-counter insect repellent, and claimed only to have sprayed
it on his person inside the vehicle. Nevertheless, the OIC purchased
an alternate brand of insect repellent with less scent for the relief
carrier, and instructed him only to spray it on himself when he was
outside the vehicle. He also instructed complainant's supervisor not to
assign the relief carrier to the vehicle complainant used if possible.
The OIC found no evidence that the relief carrier did anything wrong,
violated any Postal Service rules or regulations, or saturated the
interior of complainant's postal vehicle with any substance.
Regarding the suspension, the OIC explained that complainant asked him to
sign a piece of paper attesting to the steps he had taken to rectify the
insect repellent situation. He did not object to signing the document,
but tried to diffuse complainant's emotions about the situation by
requesting that she submit her request through her supervisor. At this
point, complainant grew loud and agitated, and used profanity toward
the OIC. As a result she was removed from the work floor and disciplined
by her supervisor. While the OIC concurred in the suspension, he also
entered into a settlement with the Union that it would be reduced to
a Letter of Warning and expunged from her record in July 2007 if there
were no more problems. There were no more problems, and the Letter of
Warning was removed as scheduled.
Complainant's supervisor explained that he was instructed by the OIC
on March 30, 2007 to have the relief carrier drive a vehicle other
than complainant's whenever possible. He asserted that he has done
everything he could to follow this instruction. He issued complainant
a 7-Day suspension dated April 18, 2007 for improper conduct because
complainant was arguing with the OIC on March 30, 2007. Complainant's
supervisor stated that he personally observed complainant's conduct from
a distance of about three feet and conducted an investigative interview
with complainant about the incident. He noted that complainant did not
deny the conduct or show any remorse, but claimed she had to do what
she did because no one else cared about her.
Regarding complainant's claim of not being able to timely meet with her
representative, the agency stated that complainant was given official
time on May 15, 2007, ten days after her written request. Complainant
has not complained that the amount of time given was not adequate.
Rather, she complains about the delay in responding to her request. The
agency asserted that it reasonably responded to complainant's request for
official time, and the law only requires it to provide what is reasonable.
Here, complainant chose a representative who was located at a different
facility. Thus scheduling her official time requires coordination between
two management teams and consideration of work schedules and operational
needs of two facilities. In such an instance, a delay from the request
to the actual time being scheduled would be expected. In sum, the agency
maintains that it provided complainant with sufficient official time,
and she has not shown that she was aggrieved by any delay.
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. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Under a disparate treatment analysis, complainant fails to satisfy her
burden in this matter. Complainant does not show that any of management's
actions were connected to her claimed bases.
Hostile Work Environment
Claim
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to 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 her statutorily protected class; (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;
and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, complainant asserted that based on her statutorily protected
classes, race (Caucasian), and reprisal, her supervisors have continuously
subjected her to a hostile work environment. However, we find that
complainant has not shown that she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving her protected
classes, or the harassment complained of was based on her statutorily
protected classes. Further, complainant has not shown that the purported
harassment had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. The agency found that there is no evidence such as
epithets, innuendos, jokes, or statements which indicate that the conduct
complainant complains about was related to her race or any other protected
classification. Rather, the evidence shows that the relief carrier used
the insect repellant on himself on a day that she was not at work and
the scent remained in the vehicle. Because complainant has failed to
put forth any evidence that any action was directed at her because of
her race or in retaliation for prior protected activity, her claim fails.
On appeal, complainant mainly asserts that agency management has
continuously allowed a hostile work environment to fester around her.
However, beyond her bare assertions, complainant has not produced evidence
to show that the agency's explanations are a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
August 27, 2009
__________________
Date
2
0120092048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092048