0120130787
05-03-2013
Jacqueline B. Evans, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Jacqueline B. Evans,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130787
Agency No. 1K-297-0004-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 8, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor Distribution Operations at the Agency's Greenville, South Carolina Processing and Distribution Center.
On March 9, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (African-American), color, sex (female), age (over 40), and in reprisal for prior EEO activity when:
1. since on or around June 2010, she is no longer being used in a higher-level detail position;
2. in or around February 2011, her days off were changed, and since then, she has not been given her choice of days off;
3. on unspecified dates, she was not given schedule changes for illness;
4. on unspecified dates, she has been moved from her assigned area;
5. on an unspecified date, another employee was given an award for work which Complainant had performed;
6. on October 19, 2011, she was issued a Letter of Warning;
7. on December 13, 2011, the Manager Distribution Operations embarrassed her when over the walkie-talkie she asked another manager to verify the work Complainant was performing; and
8. on an unspecified date, an employee was assigned to her pay location so that she would be required to place the employee on emergency suspension and would be responsible for completing the paperwork.
After the investigation, 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 November 8, 2012, the Agency issued the instant final decision. The Agency dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness. Specifically, the Agency determined that the Letter of Warning had been removed from Complainant's personnel file after Complainant provided documentation to justify her absences.
The Agency then proceeded to address claims 1 - 8 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, color, age and reprisal discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of race, sex, color, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to 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, sex, color, age and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant, on appeal, argued that the Agency erred finding no discrimination. Complainant argues that ever since she transferred to the Greenville P&DC, the Manager "who only been at the Greenville Post office about six years for some reason showed a personal and professional dislike toward me. I can say it started with leave. Every time I asked for leave it was being denied. Even when no supervisor was off and she stated their only one supervisor could be off." Complainant further argues that she was embarrassed when the Manager asked her a question via her walkie-talkie and "I answered. And it did appear as if I was lying." In addition, Complainant states, "I know I can't prove [Acting MDO] was ordered to give me a letter of warning for attendance but I can controvert the facts. One I was never instructed to give [Acting MDO] any of my documentation. It was always given to [Manager] and [Plant Manager] and the FMLA Coordinator."
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 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).
In the instant case, we do not need to address Complainant's prima facie case as we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions, as detailed below.
Regarding claim 1, the Acting Senior Manager Distribution Operations, also Complainant's manager (Manager) acknowledged Complainant was used as an Acting Manager Distribution Operations (A/MDO) before June 2010. Specifically, the Manager stated that a former manager of Greenville P&DC placed Complainant in the A/MDO weekend position prior to the arrival of the current Plant Manager. The Manager stated at that time, it was not her decision to use Complainant as A/MDO, and that a former Agency official was in the A/MDO during the weekdays "prior to my hire. Once I was hired and trained by [former Agency official] for approx one month, [former Agency official] was moved to MDO on the weekends. This is why [Complainant] was no longer needed to MDO on weekends except in the event [former Agency official] was ill, on vacation, or leave or concerning my position during the week."
Further, the Manager stated that she did not stop using Complainant as MDO and "there is only a need for 1 MDO on the weekends, [former Agency official] was reduced from working 5 days as the A/MDO for T-3 to working the weekends only as A/MDO. This is the reason [Complainant] was not needed to work as MDO on the weekends." The Manager stated that Complainant's prior protected activity "had nothing to do with her not working higher level. [Complainant] did not want to be the A/MDO. I did not make the decision on supervisors working higher level. That decision was made by the [Plant Manager]."
Regarding claim 2, the Manager stated that Complainant's days off were changed "because she was moved to a different area to supervise. Because of the move, Complainant was given Saturday/Sunday off instead of Sunday/Monday, [as in] her old operation. EAS (management) employees do not have specific days off or specific locations where they supervise. Then can be changed and/or moved at any time."
The Manager stated that she does not recall if Complainant requested certain days off "but she was needed during the T-3 normal business hours during the week when the mail volume was heavier . . . rather than on weekends when the mail volume was light. In addition there is a greater need for supervisors during the week because there are more employees needing supervision in addition to mail processing and dispatch commitments."
With respect to Complainant's allegation that her choice days off Sunday/Monday were taken away from her and given to a named supervisor, the Manager denied it. Specifically, the Manager stated that Complainant's "off days were not changed and given to [named supervisor]. Each supervisor works independently of each other and does one cover the other unit while the other supervisor is off."
Regarding claim 3, the Manager stated that after Complainant's off days were changed to Saturday/Sunday, Complainant asked for two consecutive days off "during the week for physical therapy, so I accommodated by giving her Mon/Tues off for the physical therapy for about three months even though there was no on-the-job injury. Because I needed the Complainant in her operation during the week, after the three months, I questioned her about the changes of schedule, and because she provided no further documentation stating that further physical therapy was needed, I did not approve further changes of schedule."
Regarding claim 4, the Manager stated that Complainant was moved from her assigned area "because at the time her operation was coming down too late including the AFCS [Advanced Facer Canceler System]. There were a number of performance issues that were not met, so the decision was made to move her to the Flat Sorter." The Manager stated that during the relevant time, she moved a named male supervisor from his assigned area (Flat Sorter) to Manual.
Regarding claim 5, the Manager stated that she does not recall a named employee receiving an award for the work Complainant had done. Specifically, the Manager stated "I do not recall [named male Acting Manager Distribution Operations (Acting MDO)] receiving an award. I did not give an awar[d] to [Acting MDO] and had no involvement."
Regarding claim 6, the Acting MDO stated that on October 19, 2011, he issued Complainant a Letter of Warning for Failure to be Regular in Attendance. The Acting MDO further stated that Complainant "had not provided documentation to support absences were protected. Once provided LOW was removed." The Acting MDO stated that during the relevant time, he issued a named female supervisor a Letter of Warning for Failure to be Regular in Attendance, and "after sufficient documentation was brought in it was removed also."
Regarding claim 7, the Manager stated that "the walkie-talkie is a tool that allows me to be in touch with my supervisors and the floor manager no matter where they are or what I need. I constantly use the walkie-talkie to verify operation status with all supervisors and floor managers. I do not recall any specifics on the date in question."
Further, the Manager stated that while she does not recall the December 13, 2011 incident concerning the walkie-talkie, it is possible that Complainant assumed I was checking on her work when I was inquiring as I do daily on each unit without having to physically walk the entire facility to check on operations. Many times I have to attend meetings, do administrative work and stay in my office and communicate with each supervis[or] on the walkie-talkies."
Regarding claim 8, the Manager denied Complainant's assertion that a named employee assigned to Complainant's pay location "was not assigned so [Complainant] could complete the paperwork for an emergency suspension. [E1], the employee assigned to her unit claimed that she was being harassed by an employee. On the actual day we moved [employee] to [Complainant's] unit, [E1] came to my office in tears and explained an incident that had happened in the postal parking lot over the weekend. At that time, I decided to move her to work in the Flats and to report to [Complainant], Supervisor. Coincidently, [E1] had posted messages on her facebook page making statements that a post office shooting in Michigan occurred because management failed to listen to their employees. This message was forwarded to the postal inspectors and we were instructed to place her on emergency placement until further notice."
After careful review of the record, we conclude that, 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.
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, for the same reasons already articulated, we find that the evidence of record does not support a finding that the harassing incidents alleged by Complainant occurred because of her race, sex, color, age or prior protected activity.
CONCLUSION
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.1
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
May 3, 2013
__________________
Date
1 Because we affirm the Agency's finding of no discrimination concerning claim 6 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. mootness).
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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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