0120142340
12-03-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120142340
Agency No. 4G-335-0115-13
DECISION
On June 10, 2014, Complainant filed an appeal from the Agency's May 9, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time Sales, Services, and Distribution Associate at the Agency's Carrier Annex in Titusville, Florida.
On July 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of color ("Brunette skin color") and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 12, 2012, after she was awarded a position with Saturday/Sunday as nonscheduled days, she was informed that she would not be permitted to have Sat/Sun non-scheduled days until she became scheme qualified;
2. On November 24, 2012, her request for a "no lunch" was denied;
3. As of November 24, 2012, she had not been paid for scheme training off the clock;
4. On February 21, 2013, Complainant was issued a 14-Day Suspension based on
Unsatisfactory Attendance;
5. On April 1, 2, and 3, 2013, she was instructed to wear uniform or blue/black long pants even though she informed management that she did not have those items. Subsequently, Complainant was subjected to an investigative interview on April 4, 2013 and issued a Letter of Warning on April 5, 2013 for Failure to Wear Proper Attire for the Retail Counter;
6. On April 10, 2013 she was subjected to a second investigative interview. On April 11, 2013, she was issued a 14-Day Suspension based on Failure to Wear the Proper Attire for the Retail Counter;
7. On April 12, 2013, she was again questioned about wearing the proper attire;
8. On August 21, 2013, Complainant submitted a PS Form 3971 for Sick Leave but she was charged Absent without Leave (AWOL) instead;
9. On September 12, 2013, the Complainant requested Annual Leave for November 7 and 8, 2013 which was subsequently denied on October 30, 2013;
10. On October 7, 8, and 9, 2013, the Complainant was charged with Leave without Pay (LWOP) for not reporting to her assigned bid on time; and
11. On November 13, 2013, the Complainant given a letter notifying her that on November 16, 2013, her bid hours were being changed from 7:30 a.m. to a reporting time of 4:00 a.m. on Mondays, Wednesday, and Thursdays and 3:00 a.m. on Tuesdays.
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 failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed stating that management was aware of her prior EEO activity. Further she asserted that other White employees were treated better than her regarding her assignment, payment for training, leave usage, disciplinary action, and dress code violations. Therefore, she requested that the Commission find that she was subjected to discrimination and harassment based on her color and prior EEO activity. The Agency requested that the Commission affirm its final decision finding no discrimination.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. 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 actions. Texas Dep't. of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to claim (1), the Postmaster averred that he informed Complainant that she needed to get scheme qualified and pass all the requirement of the bid position before she could assume the position. As for claim (2), the Postmaster indicated that no employees are given "no-lunch" if they have worked over four hours based on the guidelines under the Fair Labor Standards Act. The Postmaster stated that management decided for all employees that bid-related scheme training would be conducted off the clock based on past employees who were paid for training on the clock who then failed to pass scheme training. Due to the actions of these employees, the Agency lost money. As such, contrary to her assertion in claim (3), Complainant was not subjected to discrimination when she was not paid for training.
The Customer Service Supervisor (Supervisor 1) averred that she recommended Complainant for the 14-day suspension raised in claim (4) based on her "awful attendance." Despite Supervisor 1's prior warnings, discussions, and letter of warning, Complainant's attendance did not improve. As such, Complainant was issued the 14-day suspension. As for claims (5), (6), and (7), Supervisor 1 indicated that Complainant was instructed to wear the uniform or black/blue long pants when she worked the retail window. Based on Complainant's failure to comply with the Agency's dress code, she was subjected to investigative interviews. Complainant was issued discipline based on two occasions for which she failed to adhere to the dress policy. As for claim (8), Supervisor 1 stated that Complainant gave her a leave form claiming that she could not work due to alleged harassment. Supervisor 1 indicated that she did not approve the leave request. However, Complainant left the workplace without having received authorization to leave. Therefore, Supervisor 1 placed Complainant in AWOL status. As for claim (9), Supervisor 1 stated that the Officer-in-Charge at that time (OIC 1) instructed her to deny Complainant's leave request until he discussed the request with Complainant.
In claim (10), Complainant was charged leave without pay as instructed by another Customer Service Supervisor (Supervisor 2). Supervisor 2 averred that Complainant was scheduled to arrive at 7:30 a.m. but was often late. He noted that employees are given a grace period to clock in when there are several people who clock in at the same time. However, he indicated that Complainant is the only person who is to report to work at that time, so no grace period is required. As for claim (11), another Officer-in-Charge (OIC 2) stated that the Agency was closing the Indian River City Office which would result in changes to Complainant's facility. All bid positions were examined and OIC 2 made the change to Complainant's bid position. OIC 1 had already asked Complainant to start working at 4:00 when OIC 2 was out of the office. Furthermore, he indicated that management was only required to advise the employee by letter and Complainant's position was not reposted.
Upon review, we find that the Agency has provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency's reasons were pretext for discrimination based on her color and/or unlawful retaliation. Complainant clearly indicated her disagreement with the Agency's actions. Complainant asserted that others were treated differently. However, she provided no support beyond her own assertions that others were treated differently. As such, we find that Complainant has not met her burden of establishing that the Agency's actions constituted unlawful discrimination and/or retaliation.
Harassment
It is well-settled that harassment based on an individual's color and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in that class and her prior EEO activity; (3) the harassment complained of was based on color and/or prior EEO activity; (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 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 on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, and as noted above, we find that Complainant has not established that the alleged events occurred because of her color and/or her prior EEO activity. Therefore, we determine that Complainant has not shown that she was subjected to harassment based on her protected bases. As such, we find that the Agency's final decision correctly concluded that Complainant did not demonstrate that she was subjected to unlawful harassment based on her color and/or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
December 3, 2014
__________________
Date
2
0120142340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120142340