0120073205
01-22-2010
Cynthia D. Griffin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Cynthia D. Griffin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120073205
Hearing No. 430-2007-00098X
Agency No. 4K-230-0141-06
DECISION
On July 7, 2007, complainant filed an appeal from the agency's June 5,
2007 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant established that she was subjected to sexual
harassment and disparate treatment on the bases of race, sex, color,
disability and/or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing Clerk1 at the Chester Post Office in Richmond, Virginia.
On August 14, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), color (brown), disability (back)2, and reprisal for prior
protected EEO activity [under Title VII and the Rehabilitation Act]
when:
(1) on May 8, 2006, her work schedule was changed;
(2) on March 22, 2006, her job assignment duties (as a 204B supervisor)
were given to other employees;
(3) on unspecified dates in February or March 2006, and on May 8 and
May 9-12, 2006, she was subjected to sexual harassment; and
(4) on March 22, 2006, she was denied overtime.
At the conclusion of the investigation, complainant was provided 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 but on May 9, 2007, the AJ cancelled the hearing,
noting that that complainant had not provided an adequate explanation
for her failure to either respond to the agency's discovery request
or to timely submit her Pre-hearing Statement. The AJ then remanded
the complaint to the Postal Service for the issuance of a final agency
decision. Consequently, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
Final Agency Decision
The FAD preliminarily noted that complainant's complaint originally
included one additional allegation, however, on August 28, 2006, this
allegation was dismissed for failure to state a claim. The FAD found
that the claim was properly dismissed in accordance with 29 C.F.R. �
1614.107. Next, the FAD found that complainant did not prove that she
is disabled within the meaning of the Rehabilitation Act. Additionally,
the FAD found that complainant did not establish a prima facie case of
discrimination on any alleged basis, as she did not identify a similarly
situated individual, outside her protected classes, who was treated more
favorably. The FAD then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to issue
(1), the Postmaster (P1) made the decision on May 8, 2006, to change
complainant's scheduled off days (from Sundays and Thursdays to Saturdays
and Sundays), because staffing could be reduced on Saturday and have
the least impact on office productivity, and because support staff was
available during the week to assist complainant with any duties.3
As to issue (2), the FAD found that management stated that complainant's
job assignments were not given to other employees. Management noted that
contrary to her allegations, complainant was not being trained as acting
supervisor (204-B) nor was she ever detailed at a higher level status.
The FAD found that the duties she was assigned were not as a 204-B but
based in her limited duty position (which she required because of physical
restrictions). The FAD found that P1 acknowledged that all employees are
cross-trained and perform all duties as needed. Complainant's supervisor
(S1) also stated that complainant's duties were not changed, but that she
was only asked to perform her duties at a different location so that the
supervisor could move back into her office that complainant was using.
As to issue (4), the FAD found that complainant was allowed to work
overtime if there was a need and the work was within complainant's
restrictions. S1 acknowledged that complainant's restrictions may have
prevented her from certain overtime opportunities such as working the
window section, distribution of mail, or running machines.4
As to the sexual harassment claim in issue (3), the FAD found that
complainant did not show that the incidents of February or March
2006, May 8, 2006 through May 12, 2006 occurred. The FAD noted that
complainant described several incidents where the S1 made sexual gestures
or touched her inappropriately. The FAD found that there was no record
that complainant reported the incidents. S1 also denied complainant's
allegations, and stated that complainant told him "I know how to get you.
I'll file sexual harassment charges on you like everyone else does."
The FAD further found that the incidents, even if they had occurred,
were isolated incidents and not sufficient or egregious enough to create
a hostile work environment harassment. The FAD found that complainant
was not subjected to discrimination.
CONTENTIONS ON APPEAL
On August 18, 2007, complainant requested an extension of time within
which to file her brief in support of appeal. The Commission denied the
extension request because it postdated the date the original brief or
statement was due. The agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides
that the Commission has the discretion to only review those issues
specifically raised on appeal. Accordingly, we will not address the
agency's procedural dismissal of one issue in the decision herein.
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").
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). First, complainant
must 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. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proffered by the agency was a pretext for discrimination.
Id. at 256.
Assuming complainant could establish a prima facie case of discrimination
as to issues (1), (2) and (4), the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to issue
(1), management essentially stated that complainant's schedule was
changed for the efficiency of the facility's operations. As to issue
(2), management stated that complainant was never told that she was
an Acting Supervisor, 204B. Additionally, P1 also testified that
complainant was never detailed to a higher-level status, nor was any
PS Form 1723 ever completed. See ROI, Affidavits B, C. P1 stated that
complainant did not supervise other employees. Id. P1 clarified that
the duties performed by complainant were not in the capacity of a 204B,
but in her limited duty rehabilitation assignment. Id. Management also
denied that complainant's duties were changed, noting that the only
event that occurred was that complainant was asked to perform her duties
at a different location other than the supervisor's office, because the
supervisor needed access to her office. Id. S1 asserted that at that
point however, complainant became nonproductive on her own accord. Id.
As to issue (4), complainant was allowed to work overtime if there was
a need and the work was within complainant's restrictions. Id.
The Commission finds that complainant has not proven, by a preponderance
of the evidence, that the agency's articulated reasons are most likely
pretexts for discrimination or retaliation.5 Although complainant
testified that management violated Article 2 of the collective bargaining
agreement, the code of conduct, and basic employer/employee relations
listed in the Employee and Labor Relations Manual, establishing that
such violations occurred, without more, is not the same as proving
discrimination. Additionally, complainant asserted that she overheard P1
say "she can file all of the grievances and EEOs that she wants to file,
nobody is thinking about what she files. She filed grievances and EEOs
when she worked at Midlothian." ROI, Affidavit A. Even assuming P1 did
make this statement about complainant, this does not clearly indicate
that any of the challenged actions in this complaint were based on
management's desire to retaliate against complainant for her prior EEO
activity.6 We note that we do not have the benefit of an AJ's findings
after a hearing and therefore, and therefore, we can only evaluate the
facts based on the weight of the evidence presented to us.
Harassment
Complainant alleged that she was sexually harassed when S1 touched himself
inappropriately and when he squeezed between her chair and the mail
case.7 Complainant claims she told her 204B about the alleged incidents.
In order to establish a claim of sexual harassment, the complainant
must prove, by a preponderance of the evidence, the existence of five
elements: (1) that she is a member of a statutorily protected class;
(2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
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) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (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 Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994).
In the instant matter, complainant's harassment claim fails because she
has not shown that the indents cited in February or March 2006, and May
8, 2006 through May 12, 2006 occurred. There is also no record that she
reported the alleged incidents. Contrary to complainant's assertions,
P1 and S2 (Associate Supervisor) both denied that complainant reported the
alleged conduct to them. Moreover, as noted above S1 denied complainant's
allegations and stated that she told him, "I know how to get you. I'll
file sexual harassment charges on you, like everyone else does."
We simply find no persuasive evidence showing that complainant ever
reported the incidents or that the events actually occurred. Again,
we can only evaluate the facts based on the weight of the evidence
presented to us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
____1/22/10______________
Date
1 Complainant stated that her duties as a Modified Clerk included
processing markups, claims and inquiries, maintaining box section
data, assigning accountable mail to carriers in the morning, clearing
carriers of the accountable in the evening, processing forms, and other
administrative documents. Complainant testified that she also performed
lobby inspections, answered the telephone and other miscellaneous duties
as needed.
2 Complainant stated that her medical work restrictions include lifting
5 to 10 pounds, sitting intermittently 30 minutes and then standing to
stretch as needed, standing up to 20 minutes, and pushing or pulling
0 to 10 pounds. Complainant testified that she has permanent work
restrictions.
3 Management acknowledged that the letter that was given to complainant
on May 8, 2006, incorrectly stated that her hours were 8:30 to 5:30, but
that P1 issued another job offer on May 11, 2006 wherein she corrected
the hours to 8:00 to 4:30, but incorrectly listed Thursday and Sunday as
her days off. P1 stated that she lined through the May 11, 2006 offer
and changed the days off to Saturdays and Sundays.
4 The FAD noted that complainant was not denied a reasonable
accommodation. Complainant was offered and accepted the modified
positions offered by management. Complainant admitted that the schedule
changes did not violate her restrictions. Reasonable accommodation is
not an accepted issue in this complaint, and therefore, we shall not
specifically address it herein.
5 We have assumed for purposes of this decision that complainant is
"disabled" within the meaning of the Rehabilitation Act.
6 The record evidence suggests that complainant's prior EEO activity
occurred in 1996.
7 Specifically, complainant stated that on May 8, 2006, she went into the
break room and S1 leaned back on the chair and put his hand between his
legs and told complainant that he was finished talking to the 204B so she
could go and talk with her now. ROI, Affidavit A. Complainant stated
that she yelled at S1 and told him that if he said anything else to her
or made any more sexual gestures at her she would file sexual harassment
charges against him. Id. Complainant further stated that on May 9,
2006, S1 squeezed between her chair and the mail cases although there
was plenty of room for him to walk in front of her desk, and that he
again squeezed behind her on May 10, May 11 and May 12, 2006. Id.
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0120073205
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120073205