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

Equal Employment Opportunity CommissionJul 18, 2014
0120141425 (E.E.O.C. Jul. 18, 2014)

0120141425

07-18-2014

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


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120141425

Agency No. 4G-330-0304-12

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 17, 2014 final decision concerning an equal employment opportunity (EEO) complaint aing 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.

BACKGROUND

During the period at issue, Complainant worked as a Sales, Service Associate Clerk at the Agency's Country Lakes Post Office facility in Miami, Florida.

On July 31, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), national origin (African), sex (female), color (black), and in reprisal for prior EEO activity when:

1. since an unspecified date, she was treated differently than co-workers in the enforcement of the office break policy;

2. on unspecified dates, she was given the heavy work to do;

3. on May 27, 2012, her supervisor called her "insane," in response to her complaint about a conversation involving her supervisor and male co-workers;

4. on June 26, 2012, she was exposed to loud and boisterous conduct, in order to humiliate her;

5. on June 27, 2012, she was placed off the clock;

6. on July 3, 2012, she was subjected to a verbal altercation between the supervisor and a co-worker; and

7. on July 28, 2013, she was paged on the intercom, causing other carriers to joke that she was on the "10 Most Wanted List."1

After the investigation into the formal complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.

On January 17, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, national origin, color, sex or and reprisal discrimination. The Agency further found that assuming, arguendo, Complainant established a prima facie case of race, national origin, sex, color and reprisal discrimination, Agency management nonetheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.

Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin, sex, color and retaliation. Specifically, the Agency found that the record simply did not support Complainant's claim that the incidents making up her harassment claim occurred because of her race, national origin, color, sex or reprisal.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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 an 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. In regard to claim 1, the Manager, Customer Services (manager) stated that clerks get two 15-minute breaks "one in the first 2-4 hours and the other in the afternoon." The manager stated that this policy applied to Complainant and her co-workers. Furthermore, the manager stated that she was not aware of Complainant being treated differently that other co-workers with regard to breaks.

Regarding claim 2, the Supervisor Customer Service (supervisor) denied that Complainant was given the heavy work. The supervisor stated "it's actually the contrary, because of Complainant's lack of productivity she was usually given the lighter load, which made other clerks angry."

Regarding claim 3, the supervisor denied calling Complainant "insane" in response to her objection to a conversation that included profanity and gory details. The supervisor maintained that Complainant had objected to a conversation between himself and a co-worker on July 3, 2012 and stressed "it never happened."

Regarding claim 4, the supervisor stated that he did not know what Complainant was referring to when she claimed that she had been subjected to loud and boisterous conduct on June 26, 2012, and indicated that he did not believe she had been exposed to any of the things she claimed.

With respect to Complainant's allegation that the supervisor told her she had not done anything but letters that morning, the supervisor denied it. Specifically, the supervisor stated, "I don't recall this incident. Nonetheless it is becoming more and more evidence that the complainant spent more time worried about what her co-workers were doing than about doing her own work."

Regarding claim 5, the supervisor stated that on July 27, 2012, Complainant was placed "off the clock" for insubordination and failure to follow instructions. Specifically, the supervisor stated "I sent complainant home [and she was] to be back the next day. She was not suspended, nor was there any disciplinary action taken against her afterwards." The supervisor stated that Complainant had been wandering around on numerous occasions for 5 to 10 minutes at a time. The supervisor stated that Complainant "had been addressed multiple times that morning, in reference to leaving her work area, and wandering about the workroom floor. Not only did she fail to adhere to these instructions. She didn't even acknowledge being spoken to. Actually, when spoken to, she would turn and walk the other way. This [scenario] repeated itself several times, before a decision was made to send her home."

Regarding claim 6, Complainant alleged that the supervisor and a co-worker called each other "a piece of shit" and that she was offended by their behavior to the point she considered her work place was considered hostile. The supervisor stated that while he does not recall the specific incident described by Complainant, he would "never call, nor would I allow an employee to call me a 'piece of shit.'"

Regarding claim 7, the supervisor stated that the intercom "is used among other thing for paging employees. Everyone is paged at one point or another." The supervisor stated that while he does not recall the specific reason for paging Complainant on the date at issue "but I page all my employees whenever I need to see them or talk to them about something."

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. On appeal, Complainant argues that the supervisor's reasons for his actions "presented in his affidavits are not credible and are pretexts to his discrimination of the Complainant." Complainant further argues that the supervisor harassed and falsely accused a named male employee "much the same as he did the Complainant . . . [supervisor] shows a pattern of discriminating against African American (black) employees." However, beyond these bald assertions, Complainant has not presented persuasive evidence to meet her burden of proving pretext.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 must be determined by looking at all of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the instant case, we find have already found that the incidents making up Complainant's harassment claim does not establish that the incidents alleged by Complainant occurred because of her race, national origin, color, sex or prior protected activity.

Therefore, after a review of the record in its entirety, including consideration of all statements 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 (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

July 18, 2014

__________________

Date

1 The record reflects that on January 8, 2013, the Agency issued a final decision dismissing Complainant's harassment claim for failure to state a claim and finding no discrimination concerning the July 2012 suspension. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Complainant v. United States Postal Service, EEOC Appeal No. 0120131228 (July 17, 2013). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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