Ilene Smith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 22, 2005
01a55149 (E.E.O.C. Nov. 22, 2005)

01a55149

11-22-2005

Ilene Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ilene Smith v. United States Postal Service

01A55149

November 22, 2005

.

Ilene Smith,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A55149

Agency No. 1C-154-0002-04

Hearing No. 170-2004-00432X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning her equal employment opportunity (EEO) 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405.

Complainant was hired as a Casual Mailhandler, at the agency's Pittsburgh

Logistics and Distribution Center (L&DC) in Warrendale, Pennsylvania

effective December 6, 2003, not to exceed December 31, 2003.

Complainant filed a formal complaint on February 2, 2004. Therein,

complainant claimed that she was discriminated against on the bases of

race (Caucasian), sex (female), color (White), age (D.O.B. 1/26/49),

and in reprisal for prior EEO activity when:

from December 14, 2003 to December 18, 2003, she was harassed culminating

with the termination of her casual appointment effective December 18,

2003.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Thereafter, the agency filed a Motion to

Dismiss or in the alternative, a Memorandum of Law in Support of the

Postal Service's Motion for Decision Without a Hearing.

In its motion, the agency requested that the AJ issue a decision without

a hearing, finding no discrimination. The agency argued that complainant

failed to establish a prima facie case of disparate treatment race, sex,

color, age and reprisal discrimination. The agency further argued that

complainant failed to demonstrate that similarly situated employees not

in complainant's protected classes were treated favorably under similar

circumstances. As to complainant's harassment claim, the agency argued

that complainant failed to show that she was subjected to harassment

based on her race, sex, color, age and prior protected activity because

the incidents identified therein were not an adverse action.

The record reflects that the Manager, Distribution Operations (MDO)

stated that he was the deciding official to terminate complainant from

her temporary position for being absent from her assigned work area,

irregular attendance, and failure to follow instructions. MDO further

stated that on December 16, 2003, the Supervisor, Distribution Operations

(SDO) and Acting Supervisor, Distribution Operations (A/SOD) informed

him that because they could not locate complainant, they had to adjust

some of the assignments on the belt and put another employee on the

scale to cover complainant's unscheduled absence. MDO stated that

according to SDO and A/SOD, complainant then reported to her assigned

area 20 minutes after they discovered she was missing. MDO stated that

"since the adjustments had been made, not knowing if the complainant

would return to the work assignment, the complainant was told to end

[her] tour by [SDO]." MDO stated that the next day, December 17, 2003,

complainant called him and asked if she could meet with him.

MDO stated that on December 18, 2003, he met with complainant and A/SOD.

MDO stated that during the meeting, he asked complainant if she was

absent from her work assignment and that complainant said "yes because

she needed to use the restroom." MDO stated that complainant then

explained why she was away from her assignment for 20 minutes because

she used the restroom in the expansion area of the building which is the

furthest restroom from her assigned work area. MDO stated that he asked

complainant why she used this particular restroom, and that complainant

replied that it was because it was the restroom she was instructed to

use during her orientation. MDO stated that following the December 18,

2000 meeting, he interviewed SOD and another Supervisor "that conducted

all of the season casual orientations and safety demonstrations and they

assured me that at no time during any of their sessions did they instruct

any one that they are only permitted to use one of our three restrooms."

Further, MDO stated that "an employee that is absent from the work

assignment, unannounced, for 20 minutes at a time does not meet the

expectations of their positions." MDO further stated that he relied

on Employee and Labor Relations Manual (ELM) sections 666.1, 666.51,

and 666.81 in making his determination to terminate complainant.

Furthermore, MDO stated that while he was not aware of complainant's

prior protected activity, complainant's race, color and sex were not

factors in his determination to terminate her from her temporary position.

The record further reflects that SDO stated that on December 18, 2003,

he was working with A/SOD when they noted that complainant, who had been

assigned to a "critical" position, was missing. SOD further stated after

complainant reported to her assigned area twenty minutes later, he asked

her about her whereabouts. SDO stated that complainant claimed that

she went to the restroom. SDO stated that he had observed complainant

"coming from a direction opposite of both ladies restrooms in our work

section." SDO stated that he informed complainant because of her critical

assignment, she should have informed someone "of her need to leave [the]

section, not just walk away!" SDO stated that he sent complainant home

early because he had "permanently replaced her because I didn't know

where she was, neither did [A/SOD]."

With respect to complainant's claim that on December 14, 2003, she was

subjected to harassment when SDO screamed at her for talking and told

her that she was not permitted to talk to other employees, SDO stated

that it was not true. SDO further stated that on the day in question he

could not talk due to "excessive strain, too much talking." SDO stated

that complainant "may have mistaken my attempt to elevate my voice for

a scream." SDO stated that on the same day, he gave parcel sorting

instructions to a group of temporary Casuals; and that complainant

kept talking to the other Casual beside her "keeping him from getting

my instructions." SDO stated that he instructed both complainant and

the other Casual "not to talk and give the mail their complete attention."

The record reflects that the A/SOD stated that on December 18, 2003, he

and SDO noted that complainant was away from her assigned work area.

A/SOD further stated that complainant "had been gone long enough for

five or six carts of mail to have piled up, stalling mail processing

operations at that point." A/SOD stated that when complainant returned

to her assigned area, SDO approached her to discuss her absence, she "was

loud and confrontational on the work floor." A/SOD stated that following

the incident, he participated in a meeting with complainant and MDO.

A/SOD stated that during the meeting, the MDO asked him if he would

continue to work with complainant and that he said no. Furthermore, A/SOD

stated that he was not aware of complainant's prior protected activity.

The record contains a copy of ELM 666.1, 666.51 and 666.81. According

to ELM 666.1 Discharge of Duties, �employees are expected to discharge

their assigned duties conscientiously and effectively.� According to

ELM 666.51 Protests, "employees must obey the instructions of their

supervisors." According to ELM 666.81 Requirement for Attendance,

"employees are required to be regular in attendance."

On June 17, 2005, the AJ granted the agency's motion for summary judgment.

The AJ determined that the agency properly set forth the undisputed

facts and applicable law in its motions, incorporated them in his

decision, and found no discrimination. Specifically, the AJ found

that complainant failed to establish a prima facie case of disparate

treatment race, sex, color and age discrimination. Specifically,

the AJ found that complainant failed to demonstrate that similarly

situated employees not in complainant's protected classes were treated

differently under similar circumstances. As to complainant's reprisal

claim, the AJ found that complainant failed to establish a prima facie

case of reprisal discrimination because she failed to establish a casual

connection between her prior protected activity and the actions at issue.

Furthermore, the AJ found that assuming, arguendo, complainant established

a prima facie case of race, sex, color, age and reprisal discrimination,

the agency articulated legitimate, nondiscriminatory reasons for its

actions. The AJ concluded that complainant failed to establish that

more likely than not, the agency's articulated reasons were a pretext

to mask unlawful discrimination.

Regarding complainant's harassment claim (when on December 14, 2003,

SDO raised his voice, but generally complainant's allegations concern

directives given by the supervisors that she did not appreciate or agree

with), the AJ found that complainant failed to establish a prima facie

case of harassment. Specifically, the AJ found that alleged harassment

was not sufficiently severe or pervasive to create a hostile environment.

On June 28, 2005, the agency issued a final action implementing the AJ's

decision finding no discrimination.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

�material� if it has the potential to affect the outcome of a case.

If a case can only be resolved by weighing conflicting evidence, summary

judgment is not appropriate. In the context of an administrative

proceeding, an AJ may properly consider summary judgment only upon a

determination that the record has been adequately developed for summary

disposition.

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 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. 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 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. 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).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant has not shown

that the agency's articulated reasons were a pretext for discrimination.

We further agree with the determination of the AJ that the incidents of

harassment identified by complainant were neither sufficiently pervasive

or severe to create a hostile environment.

Accordingly, the agency's final action implementing the AJ's finding of

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

November 22, 2005

__________________

Date