0120131812
09-17-2013
Diane Schaffer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Diane Schaffer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131812
Hearing No. 480-2011-00417X
Agency No. 1E-891-0030-10
DECISION
Complainant filed an appeal from the Agency's March 18, 2013, 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. � 633(a). The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's P&DC facility in Las Vegas, Nevada.
On December 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 5, 2010 and on other unspecified occasions, management questioned Complainant about her work performance;
2. On May 28, 2010, management charged Complainant 15 minutes Absent Without Leave (AWOL);
3. On an unspecified date, Complainant was called into the supervisor's office, advised of coworker complaints against her and "spoken to in a harsh tone;"
4. On August 11, 2010, management gave Complainant an investigative interview;
5. On September 1, 2010, management issued Complainant a Letter of Warning (LOW) for Unacceptable Conduct;
6. Beginning September 2010, management watched Complainant more closely;
7. Between May and October of 2010, management bypassed Complainant for higher level assignments;
8. Between May and October of 2010, management did not permit Complainant to train in the Computerized Forwarding System (CFS);
9. On October 31, 2010, management denied Complainant a choice of non-scheduled days;
10. On November 1, 2010, Complainant became aware that she was excluded from working on the Automation rotation;
11. On November 2, 2010, Complainant was forced to work with an employee with whom she had prior problems;
12. On November 8, 2010, Complainant was told that she was not permitted to have a fan on the work floor; and
13. On December 13, 2010, management told Complainant to remove her fan and to not bring it again.
14. On December 16, 2010, management harassed her; and
15. On December 20, 2010, Complainant had to ask for her 30-year service pin.
The Agency accepted the claims for investigation.
The pertinent record developed during the investigation shows that Complainant worked as a Mail Processing Clerk on Tour 1. She reported to several different supervisors during the relevant time period, including the 204-B Supervisor (Caucasian male); Supervisor (Hispanic Caucasian female) and the Manager of Distribution of Operations (African-American male). All of the managers were individuals over age 40. The record does not show that Complainant filed any prior EEO complaints.
Claim One - Questioned About Work Performance
On May 5, 2010, the Manager of Distribution of Operations (MDO) approached Complainant as she was processing the mail. He viewed the indicators on the mail processing machine and asked Complainant, "Why do you have three full stackers already and only 2,500 pieces of mail have been run?" Complainant responded that she did not have three full stackers; she only had one full stacker. The MDO responded "You mean to tell me that the machine is lying? Complainant replied "Yes, I guess it is lying." The MDO warned Complainant, "Stop the attitude. I'm not the one." When she attempted to show the MDO that he was mistaken in his belief that she had three full stackers, he refused to apologize or acknowledge his error.
Claim Two - Fifteen Minutes of AWOL
On May 28, 2010, Complainant called the 204-B Supervisor and informed him that Complainant would be late. When Complainant arrived, she was approached by another supervisor who gave Complainant a 3791 absence form to complete. Complainant completed the form and requested 15 minutes of leave without pay (LWOP). The supervisor told Complainant that she could not authorize LWOP. Complainant was charged 15 minutes AWOL. Complainant protested that she was allowed two hours to call in, before she could be charged AWOL. The MDO told Complainant that there was no such two-hour grace period. After Complainant showed management her phone records (showing that she attempted to reach a manager prior to 7:30 AM), management rescinded the 15 minute AWOL charge.
Claim Three - Called into the Office
After the MDO received complaints from Complainant's coworkers about her conduct, he called Complainant into his office and informed Complainant about the complaints. He warned her that if he received any further complaints about her conduct from coworkers, he would be forced to "handle" the situation.
Claim Four - Investigative Interview
On August 10, 2010, Complainant attended a stand-up talk given by the 204-B Supervisor. He informed all of the employees, including Complainant, that they were required to clock-in at one specific location, namely, at the time clock adjacent to the assignment board in the automation area, for their tour.
The following day, Complainant clocked-in at an unauthorized location outside of the locker room. When her Supervisor observed Complainant near the designated time clock in the automation area, the Supervisor instructed Complainant to clock-in. Complainant told the Supervisor that she had already clocked-in at the other location.
Claim Five - Issued Letter of Warning
On September 2, 2010, the Supervisor issued Complainant a Letter of Warning for failing to follow instructions. Complainant grieved this issue and the Letter of Warning was rescinded and removed from her personnel file.
Claim Six - Watched Closely
Complainant averred that her supervisors were watching her perform her job. She did not observe the supervisors watching others.
Claim Seven - Denied Higher-Level Expeditor Assignments
The supervisor approached junior clerks and offered them opportunities not offered to Complainant. The record showed that management had provided Complainant with the opportunity to perform the Expeditor assignment, but Complainant stopped performing the task because she said her knees hurt.
Claim Eight - Denied Computerized Forwarding System Training Opportunity
On an unspecified date, Complainant's coworker told her that the Supervisor had asked the coworker and other clerks whether they desired training on the Computerized Forwarding System (CFS) which is used to forward mail to a new address. Complainant did not receive the training. The person who did the training was a person with whom Complainant had prior issues.
Claim Nine - Denied Opportunity to Choose Unscheduled Days
On Friday, October 29, 2010, Complainant called in sick and was absent all day. The 204-B supervisor called Complainant and offered her the opportunity to work overtime on Sunday, October 31, 2010. Complainant accepted. When she arrived on Sunday, Complainant learned that two other clerks had been offered the choice to work overtime on Saturday, October 30, 2010 or Sunday, October 31, 2010. The clerks, who had less seniority, opted to work the Saturday shift. Complainant informed the 204-B that she was the most senior clerk and he should have offered her the Saturday option first. He apologized for his error and explained that this had been an oversight since Complainant was absent from work when he was attempting to make the overtime assignments.
The following weekend, the 204-B Supervisor called Complainant first and offered her the choice to work overtime either Saturday or Sunday, but told her that there may not be a need for overtime on Sunday. Complainant chose Sunday; and there was no overtime work available.
Claim Ten - Excluded from Automation Rotation on One Occasion
On November 1, 2010, Complainant was assigned to work the front area of the automation section. She preferred to work the back area and hoped to be rotated for a portion of her shift. She remained in the front area all day on November 1, 2010. After Complainant contacted the union, management told the union steward that sometimes management moved clerks to a different machine during a shift based on operational needs, but there had been no need to rotate the automation clerks that day.
Claim Eleven - Forced to Work with a Coworker Complainant Disliked
On November 2, 2010, the 204-B supervisor assigned Complainant and another coworker to work on the same processing machine. The coworker refused to work with Complainant. The 204-B supervisor assigned a different coworker, but that coworker was one with whom Complainant had "interpersonal problems" and she informed the 204-B supervisor that he was creating a hostile environment by the assignment. Fifteen minutes later, the 204-B supervisor moved the coworker with whom Complainant had issues to a different machine.
Claim Twelve - Prohibited from Using Fan on the Work Floor
On November 8, 2010, the Tour 3 Maintenance Manager noticed that Complainant had a personal fan attached to her mail processing equipment. He told Complainant that she was not allowed to use a personal fan. Complainant challenged his statement and responded, "Since when can't I have my fan on the machine?" He told her that fans had been disallowed since 2000. Complainant ignored the manager's instruction and continued to use her fan from December 2 through December 10, 2010.
Claim Thirteen - Told to Remove Fan
On December 13, 2010, the 204-B supervisor told Complainant to unplug her fan and told her that he did not want to see it again.
Claim Fourteen - Harassed while Working
On December 16, 2010, the 204-B Supervisor approached Complainant while she was working. He told her that he wanted her to "jog the machine and keep the machine loaded." She told him that the machine was loaded and that he was harassing her.
The 204-B Supervisor then brought over the MDO to speak with Complainant. Complainant told the MDO that she was only going to perform the work enumerated in the written instructions on the machine. He then told her to get another tray. Complainant interrupted him and the MDO told Complainant to "shut up." The MDO told Complainant, "Please, all you do is talk, talk, talk." Complainant told him that she wanted a union steward. He then told Complainant that if she did not do her assignment, she would need a union steward. Complainant then asked the MDO, "Is that a threat?" and the MDO did not respond.
The next day, after the MDO instructed Complainant to continue working by getting more mail to process, Complainant responded, "Why do I have to go get the mail? That's what the mail handlers are for, to bring us the mail." The MDO then instructed a mail handler to bring Complainant more mail. Complainant told the MDO that she was being harassed.
The MDO later returned with his superior Lead Manager of Distribution Operations and they watched Complainant as she worked. They did not monitor her coworkers in this same manner.
Claim Fifteen - Complainant Had to Ask for 30-Year Pin
In December of 2010, Complainant reached 30 years of service with the Agency. The MDO received the pin on December 11, 2010. On December 20, 2010, Complainant called the Lead MDO and asked for her pin. She was told that her pin was sitting on the 204-B's desk, along with all the other employees' service pins. There is no evidence that the pins were delayed in delivery intentionally for any employee or that others not outside of her protected groups received their pins before she received her pin.
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. When the Complainant did not object, the AJ assigned to the case granted the Agency's December 19, 2012, motion for a decision without a hearing.
The AJ issued a decision on March 1, 2013. The AJ concluded that the "undisputed evidence of record does not support the conclusion that she suffered any unlawful discrimination or retaliation. The AJ reasoned that the instances of alleged harassment were innocuous or trivial actions that were not sufficiently severe or pervasive, individually or in the aggregate, to rise to the level of actionable harassment. The AJ found that Complainant failed to allege facts raising any inference that the incidents were motivated by unlawful discrimination or retaliation.
The Agency's final action implemented the AJ's decision.
This appeal followed.
ANALYSIS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
As an initial matter, we note that Complainant did not identify any specific credibility issues or material facts in dispute regarding the claims that are before us.
For purposes of our analysis, we find that she established that she is a member of a statutorily protected class (female, over age 40) and that she was watched or disciplined while others were not.
The Agency articulated a legitimate, nondiscriminatory reason for its actions (the Agency was checking on performance, enforcing leave time and attendance rules, ensuring decorum safety and making necessary assignments, which is management's prerogative,). The stated reasons are supported by the record.
For Complainant to prevail, she would have to show that the stated reasons were a pretext for unlawful discrimination. Complainant cites the fact that Complainant was the only African American clerk working on Pay Location 358 until two other African American women were hired. She said that she observed three others use the same clock that she did to clock in, but they were not disciplined. Complainant averred that one was another African American female, another was a white female, both under age 40 and an Asian male(age not specified). She said that the three worked on the same tour as she did and were allowed to clock in elsewhere, but the record does not show that her supervisor was aware of that. The record does not show that the individuals reported to her supervisor. We do not find evidence that would show that the actions complained were based on unlawful discrimination.
Harassment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct related to membership in that class; (3) the harassment complaint of was based on her membership in that class; (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 Pullano v. U.S. Postal Service, EEOC Appeal No. 0120093726 (July 27, 2011) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
We find, as did the AJ that Complainant failed to establish that she was subjected to harassment that occurred because of her race, sex, age or reprisal. In the instant case, we find no reason to disturb the AJ's findings because the findings are supported by substantial evidence in the record before us.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Action.
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 tends 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
September 17, 2013
__________________
Date
2
0120131812
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131812