Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Sep 4, 2013

0120113396 (E.E.O.C. Sep. 4, 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
(Southeast Area),
Agency.

Appeal No. 0120113396

Hearing No. 510-2010-00173X

Agency No. 1H-337-0021-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 22, 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 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodial Laborer
at the Agency’s Processing and Distribution Center in St. Petersburg, Florida. Complainant
and her co-worker (CW1) had a contentious work relationship. In April 2009, Complainant
and CW1 were involved in a heated argument in which both made accusations against each
other. CW1 shook his finger in Complainant’s face and shouted “Shut up, witch!”
Complainant’s supervisor (S1) investigated the incident and issued CW1 a Letter of Warning.

Additionally, in April 2009, Complainant alleged that her co-workers engaged in numerous
other harassing incidents against her. For example, Complainant claimed that an unidentified
co-worker placed a prisoner of war flag on her tool cart. S1 asked Complainant’s co-workers
about the flag, but no one took responsibility. In addition, Complainant alleged that other
custodians placed trash and smashed donuts on her work cart. Complainant further claimed
that employees were sticking greasy chicken bones in the wire fence in the custodial area and
smearing yogurt on the furniture. Complainant could not identify who was responsible, but
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alleged that management did nothing to stop these unsanitary practices. In May 2009, a co-
worker (CW2) called Complainant a “mail-order bride.” Complainant reported the incident to
S1. S1 spoke to CW2, but CW2 became upset and took sick leave claiming stress. CW1 and
CW2 retired in October 2009.

Around May 16, 2009, Complainant began a temporary detail assignment as Custodial Group
Leader. On May 28, 2009, Complainant’s then-supervisor (S2) ordered Complainant to move
pallets of custodial supplies. This duty was part of Complainant’s duties as Group Leader;
however, Complainant refused to complete the assignment and questioned S2. On August 22,
2009, management terminated Complainant’s detail assignment citing Complainant’s
unwillingness to perform duties assigned and her difficulty in gaining cooperation with her co-
workers.

In June 2009, Complainant’s manager (M1) met with Complainant, CW1, and a union
representative to address their disputes. M1 wanted to make Complainant and CW1 aware that
their behavior was disruptive and if they continued to act unprofessionally, management would
issue stronger discipline. During the meeting, both accused each other of creating a hostile
work environment. M1 believed that Complainant interrupted CW1 several times when he
spoke and compared Complainant to another female supervisor who frequently interrupted and
failed to listen. Complainant claimed that M1 said that “You women are all alike, you just
keep on and on. We men make it short.”

Complainant alleges that she was bypassed for overtime on three occasions in August and
September 2009. In addition, Complainant claims that she was scheduled to work 14.4 hours
on August 29, 2009, while her co-workers were not scheduled to work as long.

On September 24, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race/national origin (Philippines), sex (female), color
(yellow), age (63), and in reprisal for prior protected EEO activity when:

1. Since April 2009 and continuing, the Agency subjected her to a hostile work
environment;

2. On or about August 22, 2009, the Agency terminated her detail to Group Leader
and returned her to her Custodian position;

3. On or about August 24, September 6 and September 20, 2009, the Agency bypassed
her for overtime opportunities; and

4. On or about August 29, 2009, the Agency scheduled her to work a 14.4 hour
workday.1

1 The Agency dismissed an additional claim regarding a Letter of Warning pursuant to 29
C.F.R. § 1614.107(a)(2) as untimely. Complainant raised no challenges to the dismissal

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ granted the
Agency’s motion for summary judgment and issued a decision on May 18, 2011.

In the decision, the AJ determined that Complainant failed to show that she was subjected to a
hostile work environment. The record established that animosity existed between Complainant
and CW1 as each perceived the other as targeting and spreading negative information. CW1
acted inappropriately on one occasion by pointing his finger and yelling at Complainant and
management took immediate action. Management called a meeting to address their disputes
and advised them they had to learn to act professionally with each other or face possible
termination. In addition, management attempted to counsel CW2 for his comment. Thus,
management took immediate action to address the incidents. Finally, the AJ noted that
Complainant never advised management that she believed that the incidents were based on any
of her protected classes.

Regarding the termination of her detail assignment, the AJ found that Complainant exhibited
difficulty in directing co-workers and difficulty following supervisory instruction during the
assignment. Complainant questioned and ultimately defied her superior’s request to move
pallets. Management ultimately determined that Complainant could no longer hold the detail
position given her performance and removed her from the detail. Management gave
Complainant two opportunities to establish her ability to lead a group of custodians; however,
her difficulty with two custodians in particular precluded her from being effective.

With respect to her claim regarding overtime, the record revealed that no one worked overtime
on August 24, 2009 and September 6, 2009. Complainant worked eight hours of overtime on
September 20, 2009, and was the only employee who worked overtime. Finally, regarding her
schedule on August 29, 2009, the Agency explained that Complainant was not actually
scheduled for 14.4 hours; rather, she was scheduled for 7.2 hours.

The AJ concluded that Complainant had not established that any of the alleged incidents were
based on her protected classes. In addition, the AJ found that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ
held that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision. Complainant filed the instant appeal without submitting any arguments or
contentions in support.

before the Administrative Judge or on appeal; therefore, the Commission will not address the
dismissed claim in this decision.
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ANALYSIS AND FINDINGS

The AJ's Issuance of Summary Judgment

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.
An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant's favor, as explained below.

Hostile Work Environment

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. U.S. Postal Serv., 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 (Mar. 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).

In the case of coworker harassment, an Agency is responsible for acts of harassment in the
workplace where the Agency (or its agents) knew or should have known of the conduct, unless
it can be shown that it took immediate and appropriate corrective action. What is appropriate
remedial action will necessarily depend on the particular facts of the case, such as the severity
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and persistence of the harassment and the effectiveness of any initial remedial steps. See
Taylor v. Dep’t of the Air Force, EEOC Request No. 05920194 (July 8, 1992).

Here, Complainant asserted that based on her protected classes, she was continuously subjected
to a hostile work environment. Complainant raised complaints about a tense work environment
to management including several verbal altercations with CW1, an offensive remark made by
CW2, and someone placing trash and a prisoner of war flag around her work area. The
undisputed record reveals that management addressed those complaints by disciplining or
counseling the responsible employees when they could be identified. In addition, management
met with Complainant and CW1 and informed both that if their unprofessional conduct towards
each other continued, harsher discipline would be issued. There is no claim or evidence that
any similar conduct or incidents recurred in Complainant's workplace. In addition, both CW1
and CW2 retired soon thereafter in October 2009. Thus, the Commission concludes that the
Agency has met its burden to show that it exercised reasonable care to prevent and correct the
harassing behavior. Accordingly, the Commission finds that there is no basis for liability.

Finally, regarding M1’s alleged sexist remark during their June 2009 meeting, the Commission
concludes that it was an isolated incident that did not alter the terms and conditions of
Complainant’s work environment so as to constitute unlawful harassment. As a result, the
Commission finds no basis to disturb the AJ's summary judgment decision regarding
Complainant’s hostile work environment claim.

Disparate Treatment

As to Complainant’s remaining claims, 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). Complainant must initially
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 Constr.
Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden
then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, regarding the termination of her
temporary Group Leader assignment, S2 affirmed that she made the decision to end the
assignment based on Complainant’s failure to give her the level of assistance she needed in the
position and Complainant’s difficulty in getting custodians to cooperate with her. ROI, at 131.
With respect to overtime opportunities, the record reveals that none of the identified co-
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workers worked overtime on August 24, 2009 and September 6, 2009; however, Complainant
worked eight hours of overtime on September 20, 2009. Id. at 255-57. Finally, as to her
claim that she was scheduled for 14.4 hours on August 29, 2009, the Agency explained that the
schedule is automatically generated based on the amount of work needed and the supervisor
edits the schedule to ensure that an employee only works 7.2 hours. Thus, Complainant was
never actually officially scheduled for 14.4 hours on August 29, 2009; rather, she was only
assigned 7.2 hours of work. Agency’s Motion for Summary Judgment, Ex. 2.

Because the Agency proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record is devoid of any evidence that Complainant's protected classes were a factor in any
of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. Accordingly, the Commission finds that Complainant
failed to show that she was discriminated or retaliated against as alleged.

CONCLUSION

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 order, because the Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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.
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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
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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 4, 2013
Date