Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 7, 2013

0120113895 (E.E.O.C. Aug. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120113895

Hearing No. 551-2010-00163X

Agency No. 4E-995-0016-10

DECISION

On August 12, 2011, Complainant filed an appeal from the Agency’s July 29, 2011 final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Services &
Distribution Associate at an Agency work facility in Anchorage, Alaska. On April 3, 2010,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against and harassed her on the bases of her race (African-American) and color (Black) when:

1. On January 5 and 6, 2010, Complainant was forced to work the front window
counter without assistance.

2. On January 14, 2010, Complainant was issued a Letter of Demand after her cash
drawer came up short.

3. Since December 24, 2009, Complainant has been denied higher level pay for her
performance of close-out duties.

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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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on July 13, 2011.

With regard to claim (1), the AJ stated that the three window clerks Complainant generally
worked with were absent on the two days at issue due to annual leave and a medical
appointment. Complainant claimed that she requested her Supervisor call another branch to
see if assistance could be provided. The Supervisor asserted that he called but no one was
available. Complainant claimed that he did not call. She also claimed that two White clerks
were provided window assistance on two occasions when she was absent.

As for claim (2), the AJ stated that the Agency issued Complainant a Letter of Demand
because her cash drawer was short $10.98. The AJ observed that a White employee had a
shortage but a Letter of Demand was not issued to her for several weeks. The Supervisor
stated that he initially forgot to issue the letter to the White comparison. However, the White
employee was subjected to the same debt collection rules as Complainant. Further, the AJ
stated that Complainant did not object to receiving the Letter of Demand, but rather she
objected to the fact that she received one promptly while the White employee did not.

With respect to claim (3), this matter concerned Complainant not receiving higher pay for
performing close-out duties. Complainant claimed that she performed close-out duties when a
coworker was off on Thursdays. Complainant argued that her pay was not adjusted despite her
repeated requests to management. Complainant’s Manager stated that a White comparison
submitted a pay adjust request for higher pay for close-out duties. The Manager stated that he
did not recall Complainant submitting a pay adjust request. The AJ noted that Complainant did
not dispute that she failed to submit a pay adjust request.1

The AJ found that Complainant established a prima facie case of race and color discrimination
for claims (1) and (3), but not for claim (2). According to the AJ, Complainant made no
showing why receiving the Letter of Demand more quickly than the White comparison was
adverse.

With regard to claim (1), the Agency stated that staffing shortages accounted for the lack of
assistance provided to Complainant. The AJ found that whether the Supervisor sought
assistance or not for Complainant was irrelevant given that other employees outside of
Complainant’s protected groups routinely worked without assistance. The AJ noted that even
Complainant stated that there was an epidemic of employees working the window alone and the
AJ pointed out that this included the two White comparisons cited by Complainant. As to

1 The Agency states that Complainant challenged not receiving higher level pay for the period
of May – September 2010, in a grievance that was settled at Step Two with Complainant being
awarded higher pay for some, but not all of the claimed days.
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claim (3), the Agency explained that the White comparison submitted a written pay request in
order to adjust her pay rate, but Complainant did not. The AJ found that the Agency presented
legitimate, nondiscriminatory reasons for its actions in claims (1) and (3). The AJ found that
Complainant did not present any evidence contrary to the Agency’s description of events and
that she failed to establish the existence of a material question of fact relating to claims (1) and
(3).

The AJ also found that Complainant failed to establish a prima facie case of harassment. The
AJ reasoned that the three acts taken as a whole did not amount to conduct severe or pervasive
enough to create a hostile work environment. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant set forth a prima facie case of race and color
discrimination as to claims (1) and (3). With regard to claim (2), Complainant does not
dispute that the Letter of Demand was justifiably issued to her. Rather, she contests the fact
that a White comparison was issued a Letter of Demand in a less timely manner. The
Supervisor admitted that he failed to issue the Letter of Demand to the White comparison in a
timely manner. The Agency maintains that this was an inadvertent, unintentional error. We
find under the circumstances herein that this did not amount to an adverse action.

With respect to claim (1), the Agency explained that a shortage of staff personnel contributed
to there being frequent occasions where window clerks, without respect to race or color, had to
work alone without assistance. In terms of claim (3), the Agency stated that Complainant,
unlike the White comparison, did not provide the requisite documentation in order to receive a
pay adjustment for higher level pay. We find that the Agency articulated legitimate,
nondiscriminatory reasons for the actions at issue in claims (1) and (3).

Complainant attempts to establish pretext as to claim (1) by challenging the Agency’s assertion
that assistance was sought on the days that Complainant worked the window alone. However,
even if the Agency did not pursue assistance for Complainant on these days, it does not negate
the fact that personnel, without respect to race or color, frequently had to work the window
alone due to staff shortages. In terms of claim (3), Complainant has not refuted the Agency’s
position that she failed to submit necessary documentation in order to obtain a pay adjustment
for higher level pay. We find that Complainant has failed to establish that the Agency’s
explanation was pretext as to claims (1) and (3).

We also find that Complainant failed to establish a prima facie case of a hostile work
environment. The record reflects that the three incidents at issue are not of sufficient severity
or pervasiveness to constitute harassment. The Agency’s determination in its final order that
no discrimination occurred is AFFIRMED.

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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.

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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

August 7, 2013
Date