01a53060
08-10-2005
Gladys F. Sevier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gladys F. Sevier v. United States Postal Service
01A53060
August 10, 2005
.
Gladys F. Sevier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53060
Agency No. 4H-320-0111-03
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her formal complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Distribution Window Clerk at the Monument Branch Station
of the Jacksonville, FL Post Office. After undergoing EEO counseling,
complainant filed a formal complaint on July 1, 2003, in which she
alleged that the agency had subjected her to unlawful discrimination
on the bases of race (African-American), sex (female), and reprisal for
prior EEO activity, in the form of a hostile work environment, when:
On March 5, 2003, she was not allowed to cancel leave;
On March 6, 2003, she was not allowed to clock in on the day that she
was scheduled to be on leave;
On March 11, 2003 and March 21, 2003, she was instructed to perform her
accountable duties in a nonsecure manner;
From March 10, 2003 through March 15, 2003, she was instructed to perform
other duties and her work performance was questioned;
On March 21, 2003, she was issued two letters of demand;
On March 22, 2003, she was informed that her leave cancellation would
be handled differently than that of other employees;
On March 28, 2003, she was denied a change of schedule;
On March 31, 2003, and April 1, 2003, she was instructed to perform
accountable duties with a non-audited stamp stock; and
On May 8, 2003, she became aware that information concerning a deceased
relative was handled in a disparate manner.
At the conclusion of the agency's investigation into complainant's
complaint, complainant was informed of her right to request a hearing
before an EEOC Administrative Judge (AJ) or, alternatively, to receive a
final decision by the agency. When complainant failed to respond within
the time period specified in 29 C.F.R. � 1614.108(f), the agency issued
a final decision on February 14, 2005, finding no unlawful discrimination
or retaliation. In so finding, the agency thoroughly discussed each claim
and the relevant evidence of record, and concluded that complainant had
failed to establish that she had been subjected to unlawful discrimination
or retaliation, as alleged. Complainant filed the instant appeal.
On appeal, complainant reiterates her discrimination and retaliation
claims, and challenges the agency's hostile work environment analysis.
The agency requests that we affirm its final agency decision.
Pursuant to 29 C.F.R. � 1614.110(b), complainant appeals from a final
agency decision issued without a hearing before an AJ. Thus, we apply a
de novo standard of review, and our decision is based upon a preponderance
of the evidence. 29 C.F.R. � 1614.405(a). After a thorough review of the
record on appeal, we find that the agency properly concluded in its final
agency decision that complainant failed to prove by a preponderance of the
evidence that she was subjected to unlawful discrimination, as claimed.
Harassment in the form of a hostile work environment is actionable only if
the harassment to which complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of her employment. Cobb
v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Hostile work environment claims may be based on the cumulative effect of
individual acts. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002). To establish a prima facie case of a hostile work environment in
violation of Title VII, the complainant must show that: (1) she belongs
to a statutorily protected class; (2) she was subjected to unwelcome
conduct related to her membership in that statutorily protected class;
(3) the harassment complained of was based on her membership in that
statutorily protected 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.
Roberts v. Dep't of Transp., EEOC Appeal No. 01970727 (Sept. 15,
2000); McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5,
1999)(citing Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982)).
Examining complainant's harassment allegations cumulatively, and even
assuming that complainant has established that each of the alleged agency
actions did in fact occur, a preponderance of the record evidence does not
establish that the complained-of agency actions were either related to,
or were based upon, her race, sex or prior participation in protected
EEO activity, or otherwise support her harassment claim. We find that
complainant has failed to prove the existence of elements 2, 3, and 4, and
thus fails to establish a prima facie case of harassment. In response
to the specific allegations that make up complainant's hostile work
environment claim, the agency provided evidence explaining its actions.
With regard to allegation 1, complainant alleges that when she called
her supervisor on March 5, 2003 to cancel leave that was approved for
the following day, March 6, 2003, complainant's supervisor told her that
complainant would have to send a PS Form 3971 (Request for or Notification
of Absence form) by facsimile or give complainant's supervisor the PS Form
3971 in person. Complainant alleges that she then told her supervisor
that she did not have access to a facsimile machine, and reminded her
supervisor of the common practice to simply phone in a cancellation and
fill out the PS Form 3971 when the employee returned to work on the
day of the scheduled leave. Complainant alleges that her supervisor
then suggested that complainant go to Winn Dixie (a local supermarket)
or somewhere else to fax the PS Form 3971.
Complainant's supervisor, who was named in complainant's prior EEO
activity, explains that she did not allow complainant to cancel leave
for Thursday, March 6, 2003 because she was following her manager's
instructions. Complainant's supervisor explains that Monument Station's
policy or practice for cancelling leave is to have the individual cancel
the leave in writing up to the close of business on the day prior to
the leave. Complainant argues that a White male, a White female, and
an African-American male have all been able to cancel leave and turn in
a PS Form 3971 upon return to work on the day of the scheduled leave.
The only evidence that complainant has submitted regarding the three
comparison employees, however, is a handwritten statement from her
union representative, in which the union representative makes the bald
assertion that during a grievance investigation, he interviewed two of
the comparison employees, and they �said that they had not been denied
the opportunity to cancell (sic) previously approved incidental leave.�
Complainant's supervisor does not recall allowing the White male, White
female, and African-American male to cancel annual leave the day of their
scheduled leave. With regard to allegation 1, we find that complainant
has failed to establish that she was treated differently from similarly
situated employees.
With respect to allegation 2, complainant alleges that when she attempted
to return to work on March 6, 2003, her manager (who was not named in
complainant's prior EEO activity) told her that she could not clock in.
Complainant alleges that her manager had only been the station manager for
about 2 weeks. Complainant argues that she believes that her supervisor
gave complainant's manager her opinion of complainant, which complainant
believes was negative, discriminatory and retaliatory since complainant
had previously filed complaints against her supervisor. Complainant's
manager explains, however, that he did not let complainant clock in on
March 6, 2003 because complainant had not cancelled leave in advance
and Monument Station was staffed so her services were not required.
Complainant's manager explains that to the best of his knowledge, there
was no policy or practice at Monument Station for employees to cancel
prescheduled leave by reporting to work on the days of their prescheduled
leave and thereupon turning in a PS Form 3971. We find that, with respect
to allegation 2, complainant has failed to adequately rebut the agency's
explanation for its action.
With regard to allegation 3, complainant alleges that on March 11, 2003,
and March 21, 2003, her supervisor instructed her to leave the door to
the Stamps by Mail office open, with a bundle of checks on the table,
and the computer still on, contrary to the common practice of securing
the Stamps by Mail office by locking the door, turning off the computer,
and putting away accountable materials that she started to process.
Complainant alleges that she is held responsible for stock that is
assigned to her and that she would have to produce money if anything
turns up missing. Complainant argues that her supervisor was engaging
in this behavior to force her out of her job and create a hostile work
environment.
The record indicates that the supervisor's instructions were based on
the supervisor's need to answer telephone inquiries after complainant
went home for the day. We note that when complainant requested that
the supervisor put her instructions in writing, the supervisor complied
with complainant's request. Complainant's supervisor explains that
complainant is not accountable for the checks until the orders are filled.
With regard to allegation 3, we find that complainant has failed to
adequately rebut the agency's explanation for its action.
With respect to allegation 4, complainant alleges that even though she
sometimes works in the box section or in distribution (in addition to
her duties in Stamps by Mail), her supervisor continually asks her
about productivity, knowing that complainant works in other areas.
Complainant argues that her supervisor is making it seem as if she is
not productive, to harass her and ultimately force her out of her job.
The record indicates that complainant's supervisor asked complainant to
perform duties other than Stamps by Mail on an as needed basis, and did
not question complainant's job performance with respect to productivity.
Complainant's supervisor explains that she simply reminded complainant
of work goals. With respect to allegation 4, complainant has failed to
show any relation between the agency's actions and complainant's race,
sex or prior participation in protected EEO activity.
With regard to allegation 5, complainant alleges that on March 21,
2003, her supervisor came to her as she was working box section, and
demanded that complainant stop what she was doing to read and sign
two letters of demand for uncollected checks. Complainant told her
supervisor that she did not agree with the contents of the demand
letters and did not think that she should sign them. Complainant
alleges that her supervisor stormed out of the office, returned with a
204B supervisor, read the letters to complainant, and told complainant
that complainant had to sign the letters immediately or sign papers to
start payroll deductions. The letters of demand state that complainant
�did not follow check acceptance procedures set forth in Section 311
of Handbook F-1.� Complainant argues that management was employing
more harassment tactics by giving complainant the letters of demand
because �checking the bad check list was not normal practice in the SBM
[Stamps by Mail] operation[.]� Complainant alleges that on November 8,
2002, she was told to start checking all checks by the bad check list.
Complainant alleges that the checks which were part of the demand letters
(issued to her on March 21, 2003) were processed before November 8, 2002.
Complainant alleges that complainant's supervisor could have accepted
the checks because complainant's supervisor works in the Stamps by Mail
office when complainant is not working.
Complainant's supervisor acknowledges issuing complainant the two letters
of demand, and explains that two checks were accepted by the Stamps
by Mail Office on dates which complainant was working in the office.
Complainant's supervisor explains that she followed all proper procedures
in issuing the letters of demand to complainant, and that the issue was
settled through the grievance procedure at Step 1A when the demand letters
were rescinded.<1> We find that, with regard to allegation 5, complainant
has failed to adequately rebut the agency's explanation for its action.
With respect to allegation 6, complainant alleges that on March 22,
2003, complainant's supervisor phoned her at home, and informed her
that from then on, complainant must put cancellation for leave slips
in a manager's hands. Complainant argues that she believes that
her supervisor's actions were in retaliation because it was another
opportunity for her supervisor to make her pay for her prior EEO activity.
The record indicates that on March 22, 2003, complainant's supervisor
was instructed by management to call complainant and inform her that all
cancellation of leave had to be done in writing, and given to a supervisor
at least the day prior to the scheduled leave. Complainant's supervisor
explains that as far as she knows, mostly all employees personally hand a
cancellation slip to a member of management. Although complainant alleges
that a White male and a White female have not been instructed to put
leave slips in a manager's hands, complainant has submitted no evidence
substantiating her bald assertions. Similarly, complainant alleges that
the male employees in the office are not instructed to put leave slips
in a manager's hands, but provides no supporting evidence. With respect
to allegation 6, we find that complainant has failed to establish that
she was treated differently from similarly situated employees.
With regard to allegation 7, complainant alleges that on March 28,
2003, she was denied a change of schedule when she filed a PS Form 3189
(Request For Temporary Schedule Change For Personal Convenience form) for
the next three of four Saturdays to change her begin tour time from 0600
to 0500, for personal reasons. The record indicates that complainant's
supervisor denied complainant's PS Form 3189 based on instructions given
by management. Complainant's manager alleges that he does not recall
that complainant requested a change in schedule on March 28, 2003, or
whether he denied the request. Complainant's manager explains that if he
did deny complainant's change of schedule request, it was denied based on
anticipated staffing needs. Complainant's manager argues that changes of
schedules are, as stated, �for personal convenience� of the employees,
and that managers and supervisors must consider staffing as dictated
by known or anticipated work load when granting changes of schedules.
We find that, with regard to allegation 7, complainant has failed to
adequately rebut the agency's explanation for its action.
With respect to allegation 8, complainant alleges that when she returned
to work on March 31, 2003 from a week of sick leave, her supervisor
had opened her stamp stock. Complainant alleges that this was not a
warranted emergency for her supervisor to go into her stock, and that her
supervisor did not try to reach her (which is required procedure) before
opening her stock. Complainant alleges that her supervisor had removed
items, and that when complainant returned, her supervisor instructed her
to just continue to work from that stock and just accept her word that
everything is fine. Complainant alleges that her supervisor continued
urging her to use that stock, until complainant finally called the Union
to tell them what her supervisor was doing.
Complainant's supervisor explains that during complainant's week of sick
leave, complainant was in the hospital, and complainant's supervisor could
not reach complainant. Complainant's supervisor explains that there were
pending orders locked in complainant's cabinet, so she considered it an
emergency to get those orders filled. Complainant's supervisor explains
that she followed all proper procedures when she opened complainant's
stock, and that she sealed complainant's stock as soon as complainant
requested it to be audited. We find that, with respect to allegation 8,
complainant has failed to adequately rebut the agency's explanation for
its action.
With regard to allegation 9, complainant alleges that when she returned to
work on May 8, 2003, after her brother's burial, she noticed that there
was no announcement of her brother's death taped to the time clock as is
the normal procedure in the Monument Station Post Office when an employee
or an employee's relative dies. Complainant alleges that there was a
little piece of paper on a table which announced her brother's passing,
but that compared to the announcements normally made, the announcement
was insufficient. Complainant argues that her supervisor's insufficient
announcement was her supervisor's way to exercise her racial hatred
by using her position, and was in retaliation for complainant's prior
EEO activity.
The record indicates that complainant's supervisor did not normally
handle the posting of announcements concerning deaths, and that when
complainant called and told her that her brother had passed away,
complainant's supervisor got the information from complainant and
forwarded it to a clerk who normally takes collections or gets a card for
bereaved employees. Complainant has failed to show any relation between
the agency's actions and complainant's race, sex or prior participation
in protected EEO activity.
In conclusion, we find that complainant has not established a successful
hostile work environment claim because she has failed to show that the
actions of which she complained were based upon her membership in a
protected class. After a careful review of the record in its entirety,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
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.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 10, 2005
__________________
Date
1 In her appeal brief, complainant acknowledges
that the letters of demand have been rescinded.