0120071782
04-17-2009
Jerri E. Todd, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerri E. Todd,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071782
Hearing No. 560-2005-00005X
Agency Nos. 4E-640-0082-05, 4E-640-0014-06
DECISION
Complainant filed an appeal with this Commission from the January 29,
2007 agency decision which implemented the January 23, 2007 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges employment discrimination in violation Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. Specifically, complainant, a Small Parcel Bundle Sorter,
alleged in her consolidated complaints that the agency discriminated
against her on the bases of sex (female) and/or reprisal for prior EEO
activity when:
1. On July 14, 2005, complainant was requested to submit multiple forms
to satisfy a grievance.
2. On July 14, 2005, complainant was not allowed to sign up for health
benefits.
3. On October 28, 2004, complainant was notified, in a letter of removal,
of her termination, effective December 3, 2004.1
4. On July 12, 2005, complainant was made aware that a male co-worker
was issued a 14-day suspension later reduced to a letter of warning.
5. Complainant was not given an official badge until August 1, 2005.
6. On October 26, 2005, complainant's annual leave was marked as
unscheduled.
7. On November 1, 2005, complainant's annual leave request was denied.
8. On November 3, and November 4, 2005, complainant was not maximized
on overtime.
9. On January 20, and January 27, 2006, the overtime rotation was not
properly utilized.
10. On January 25, 2006, complainant was told that she had to re-select
her vacation time and her co-workers became angered by this incident.
11. On January 25, 2006, complainant was not properly rotated on the
overtime schedule.
12. Complainant was subjected to harassment.
After the investigation, complainant requested a hearing. A hearing was
held before an AJ who determined that the agency did not discriminate
against complainant.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 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, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
To establish a claim of harassment, a complainant must show that
(1) complainant is a member of the statutorily protected class; (2)
complainant was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. 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. 915.003 (March 8, 1994). Further, the
incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In the case of harassment by a supervisor, complainant must also show
that there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With respect to harassment claims, the United States Supreme Court
has held that a complainant alleging a hostile work environment will
not be time barred if all acts constituting the claim are part of the
same unlawful practice and at least one act falls within the filing
period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10,
2002). The Court further held, however, that "discrete discriminatory acts
are not actionable if time barred, even when they are related to acts
alleged in timely filed charges." Id. The Court defined such "discrete
discriminatory acts" to include acts such as termination, failure to
promote, denial of transfer, or refusal to hire, acts that constitute
separate actionable unlawful employment practices. Id. Finally, the
Court held that such untimely discrete acts may be used as background
evidence in support of a timely claim. Id.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
I. Procedural Dismissal of Claims 3, 4, and 5
As an initial matter, the Commission notes that in one complaint (C-1),
the agency issued a Partial Acceptance, dated September 20, 2005.
Therein, the agency accepted claim 2 only (claim concerning health
benefits) and dismissed remaining claims 1, 3, 4, and 5. Complainant
submitted her objections to the dismissal of the claims to the agency
pursuant to the Partial Acceptance and to the AJ, pursuant to the AJ's
Acknowledgment and Order. The agency filed its response to complainant's
objections. The AJ upheld the agency's dismissal of claims 3 and 4,
but reversed the agency's dismissal of claims 1 and 5. The AJ also
indicated that complainant did not file a motion to reinstate any claims
dismissed in the second complaint.
Claim 3
The agency dismissed claim 3, issuance of the letter of removal as
moot. The AJ disagreed that the claim was moot, but dismissed claim
3 on the basis of untimely EEO Counselor contact. We agree that EEO
Counselor contact was untimely and this claim is properly dismissed
pursuant to 29 C.F.R. �1614.107(a)(2). Moreover, we find that
complainant failed to provide justification sufficient to extend the
time period. Complainant had 45 days from the date of her termination
to contact an EEO Counselor contact. See 29 C.F.R. �1614.105(a)(1).
Complainant's termination was effective in December 2004. Complainant
did not initiate Counselor contact until July 2005, which was beyond the
requisite time period. Complainant's explanation that she did not know
that the agency was discriminating against her when it terminated her
until she learned in July 2005, that an employee not in her protected
group was treated differently was unpersuasive to the AJ who noted that
during the arbitration hearing on her termination, complainant alleged
disparate treatment.
Claim 4
The agency dismissed claim 4, complainant's allegation that she became
aware that a co-worker's 14-day suspension was reduced to a letter
of warning, for failure to state a claim. The agency indicated
that complainant failed to show how she was personally harmed
by the claim because the discipline applied to another employee.
Claim 4 does not state an independent claim and is really evidence in
support of her underlying claim that complainant was discriminatorily
terminated. Therefore, claim 4 is properly dismissed pursuant to 29
C.F.R. �1614.107(a)(1).
Claim 5
We find that claim 5 is properly dismissed for failure to state a claim
pursuant to 29 C.F.R. �1614.107(a)(1), because complainant was not
aggrieved by the delay in receiving a badge. Furthermore, even if she
were aggrieved, we agree with the AJ that complainant failed to show she
requested a badge or that the agency discriminatorily denied her a badge.
II. Finding of No Discrimination on Claims 1, 2, and 6 - 12
The Commission first notes that the AJ made credibility findings.
She found that complainant was very specific during direct examination,
recalling dates and events with certainty, but that she was evasive and
less than candid during cross-examination. The AJ found the testimony
of complainant's supervisor credible and consistent. The AJ noted that
the supervisor was forthright and credible with his responses.
Claim 1
Regarding claim 1, having to submit multiple forms, complainant testified
that the forms were needed to process her back pay from the grievance
award. Complainant also testified that with the forms, she needed to
submit paycheck stubs for employment she held after her termination from
the agency. She stated that obtaining the pay check stubs took a couple
of days. Complainant testified that she submitted the forms twice but
was asked for the forms multiple times. She testified that she submitted
the form and documentation to the Manager of the Springfield, Missouri
Processing and Distribution Center (Manager), but that her supervisor
and also Human Resources personnel asked her to complete the same form.
Complainant testified that the agency was retaliating against her
because she did not know of any other employees who had had to submit
paperwork constantly. She also testified that she had worked with a
lot of different employees during the grievance and arbitration process
but she could not identify an employee who came back to work exactly
as she had. She also testified that she felt she was being asked to
submit the forms because the agency was trying to get her to answer or
check a box on the forms differently so it could terminate her again.
The AJ found no discrimination regarding complainant's claim that she had
to submit multiple forms. The AJ also concluded that the supervisor's
request for a form from complainant was not retaliatory.
The AJ noted the testimony of complainant that upon her return to work on
July 5, 2005, she was asked to complete paperwork for back pay and that
complainant testified that she had to wait for a pay stub from private
employment she held during the period of her termination. The AJ also
noted the testimony of the union representative that he was notified
by the agency that complainant's paperwork was not correct because she
needed to provide information regarding her outside employment.
The agency articulated a legitimate, nondiscriminatory reason for
requesting the forms from complainant, i.e., the forms were requested
because the agency needed them so that it could process her back
pay pursuant to the grievance award. Complainant has not shown that
the agency's reason was pretextual and we find no discrimination for
claim 1.
Claim 2
Regarding complainant's claim that she was not allowed to sign up for
health benefits on July 14, 2005, the AJ found that the agency did not
discriminate against complainant. The AJ found that complainant failed
to identify a comparative employee. The AJ also found that the acting
Human Resources Specialist (HRS) was unaware of complainant's prior EEO
activity. The AJ noted the testimony of the HRS that she was the person
who assisted complainant with her health insurance coverage and that
she could not reinstate complainant's coverage without a life changing
event because complainant had terminated her health insurance with
the agency. The AJ also noted that the HRS testified that complainant
did not initially inform her that she had had insurance with another
employer and this contributed to a delay in processing.
The agency articulated a legitimate, nondiscriminatory reason for its
action, i.e., complainant had canceled her insurance and could not be
automatically processed by the agency without a life changing event
having occurred. The HRS testified that according to the Office of
Personnel Management's rules and regulations, complainant needed a
life changing event to re-enroll. She testified that when she learned
that complainant had had employment with a private employer and that
her health insurance ended when complainant left private employment,
the ending of her private employment qualified as a life changing
event. The HRS also testified that she had never before processed a
similar request. She also testified that once she received notice from
complainant that she had had health insurance with a private company,
she was able to process the health insurance the very next pay period.
We agree with the AJ that complainant failed to show that the agency
acted discriminatorily in claim 2.
Claim 6
Regarding the marking of her annual leave request as unscheduled, the
AJ concluded that no comparable circumstance existed and, also, there
was no evidence that this type of request, of an uncertain duration,
combined with a short staff situation, was ever approved. The AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, i.e., leave not scheduled in advance is
considered unscheduled leave.
The AJ noted complainant's testimony that she submitted a leave slip to
S-2 on October 26, 2005, to take an extended lunch on October 26, 2005,
because she had an appointment with her physician. The AJ also noted
that complainant indicated that she had did not know how much leave to
request because she did not know when she would be returning to work.
The AJ noted the testimony of S-2 that she told complainant that she
could take one hour of leave but that she could not cover complainant's
work for longer than an hour. The AJ further noted that S-2 testified
that complainant called her later to tell her that she needed more
time and she informed complainant that she would not have a full crew
without complainant. S-2 then marked complainant's leave as unscheduled.
The AJ also noted that agency regulations provided that any leave not
scheduled in advance was considered unscheduled leave.
The AJ noted that complainant's immediate supervisor had granted same day
leave to complainant on July 26, 2005, but that complainant had indicated
specific hours for the duration of the leave. We agree with the AJ
that complainant failed to show that the agency acted discriminatorily
in claim 6.
Claim 7
Regarding the denial of her request for annual leave, complainant
testified that she submitted her request for annual leave on October 29,
2005, for 32 hours of leave from November 22, 2005, through November 26,
2005, and that Thanksgiving would have occurred during the period of
her request. She testified also that the leave was for "must leave"
or leave that had to be used or would be lost. She testified further
that the majority of times "must" leave was approved.
Complainant's supervisor testified that complainant submitted her leave
request to a substitute supervisor who gave it to him as complainant's
regular supervisor. He testified that he denied complainant's "must"
leave because it was for leave during the week of Thanksgiving and he
had already approved another employer's leave request for the week.
Complainant's supervisor testified that in January, another employee had
bid the holiday week. He also testified that he would have been short
staffed had he granted the leave.
The AJ concluded that the agency had articulated legitimate,
nondiscriminatory reasons for its actions, finding that the period
complainant requested was for prime leave and, as such, the leave needed
to have been requested a year in advance. The AJ also concluded that
granting the requested leave to complainant would have resulted in
staff shortage. The AJ further noted that complainant's supervisor and
S-2 had granted several other leave requests of complainant.
We find that the agency articulated a legitimate, nondiscriminatory reason
for denying complainant's request, i.e., another employee had already
bid for the period months earlier than complainant and the agency would
have been short staffed if the leave were granted. We agree with the AJ
that complainant failed to show that the agency acted discriminatorily
in claim 7.
Claim 8
Regarding complainant's claim that she was not being maximized for
overtime, complainant testified that she was denied maximum overtime
opportunities and that employees who sign the voluntary overtime desired
list (OTDL) are guaranteed maximum overtime opportunities. She testified
that the OTDL had to be used first when overtime became available. The AJ
found that complainant had not shown that she was treated differently
from any other employee and that she had presented no evidence that
any employee with less seniority received more overtime than she did.
The AJ also concluded that the agency had articulated a legitimate,
nondiscriminatory reason for its action, noting the testimony of S-2
that employees on one shift could not displace employees on the next
shift and thus more employees are utilized for shorter periods to
maximize work productivity. The AJ noted testimony of S-2 that if she
scheduled earlier shift employees to work into the next shift's work,
her action would cause a conflict in the terms of the union bargaining
agreement which prohibited displacing an employee on the next shift and
terms regarding maximum overtime. We agree with the AJ that complainant
failed to show that the agency acted discriminatorily in claim 8.
Claim 9
Complainant claimed that overtime was not properly utilized on January 20,
and January 27, 2006, and that her supervisor caused her to lose overtime
by allowing employees not on the OTDL to work overtime. Complainant
testified that on January 20, and January 27, 2006, management failed to
properly rotate the overtime list and, also, that she worked two hours
of overtime on January 27, 2006, although she should have worked four
hours of overtime.
The AJ found that no employee worked overtime on January 20, 2006. The
AJ also noted that three employees with more seniority than complainant
also worked two hours of overtime on January 27, 2006, rather than four
hours and that no employee worked more than two hours of overtime on
January 27, 2006.
The AJ found that complainant failed to establish that the agency's
articulated legitimate, nondiscriminatory reasons were pretextual.
The AJ noted the testimony regarding employee displacement in awarding
overtime in the bargaining agreement.
Even if the rotation had not been properly utilized, the preponderance of
the evidence does not demonstrate that the agency intended to discriminate
or retaliate against complainant. The record reveals that complainant
was selected for overtime on other days following. Therefore, we find
no discrimination in claim 9.
Claim 10
Regarding claim 10, having to re-select her vacation time, complainant
testified that she signed up for vacation from December 26 to December
31, 2005. She also testified that although the form she signed appeared
to be blacked out for the dates which she selected, she did not notice
that the requested dates were blacked out when she signed the form
and she did not know that a blacked out date meant it was unavailable.
Complainant testified that during a meeting at which she was not present,
S-2 informed employees that someone had improperly signed up for an
unavailable date and employees were angry with her because they had
to re-select.
S-2 testified that all employees were aware that blacked out dates are
unavailable; that the same form was used for many years; that the week
requested by complainant was never available; and that complainant, as
an experienced union steward, was aware of this practice. Complainant's
supervisor testified that, although the date was blacked out, S-2 had
made a mistake because the date should not have been on the sheet at all.
He further testified that as soon as the mistake was discovered, the
form was removed and a new form was distributed.
The AJ concluded that complainant's testimony was not credible and
that any negativity exhibited toward complainant was caused by her
actions and not intentionally by the agency. The AJ found that
any mistake in including the date on the form could not have been
motivated by discrimination because the agency could not have known
that complainant would have selected the black out dates. Therefore,
we find no discrimination in claim 10.
Claim 11
Complainant testified that on January 25, 2006, she was not properly
rotated between employees on the overtime list. She testified further
that it was her turn in the rotation to come in for early overtime but
that a male employee was asked to come in instead of her. Complainant
testified also that at times she could not come in early due to childcare
matters but sometimes she could do so but she did not believe that she
was asked to work overtime on that day.
Complainant's supervisor testified that he could not recall the specific
incident but that complainant was not always available for early overtime.
He also testified that the names written in the overtime sheet appear
to be S-2's handwriting and not his and therefore S-2 would have called
the employees about overtime. Complainant's supervisor testified that
if he should have designated complainant for overtime but did not,
it would have been a mistake. He further testified that accidents do
happen and he could have made a mistake but it was not intentional.
Complainant's supervisor also testified that if he made a mistake on
the OTDL, the mistake would be grieved by the employee and that it
would serve no purpose to him to leave someone intentionally off the
OTDL because grievances were a pain to attend to because attending to
grievances required that he had to sit at his desk completing paperwork
rather than being out and around employees.
The AJ found that the failure to rotate was the result of a mistake
and that complainant had made no showing that the agency's explanation
was unworthy of belief. In so finding, the AJ noted the supervisor's
testimony that although he could not recall the specific event, he
could have made a mistake. The AJ also noted that complainant's witness
testified that all of his supervisors, including complainant's supervisor,
made mistakes regarding overtime rotation. The AJ found that it was more
likely that S-2 and not her supervisor who made the overtime assignment.
We agree with the AJ that complainant failed to show that the agency
acted discriminatorily in claim 11.
Claim 12
The AJ also addressed the issue of whether complainant was subjected to a
hostile work environment. The AJ determined that considering the record
as a whole, complainant had failed to establish that she was subjected
to harassment so severe and pervasive that it created a hostile work
environment.
Upon review, the Commission finds that the AJ's findings are based on
substantial evidence of record. Because the agency has articulated
legitimate, nondiscriminatory reasons for its actions, the Commission
need not address whether complainant has established a prima facie case
on each claim. Complainant has failed to show by a preponderance of the
evidence that the agency's articulated reasons were mere pretext to hide
unlawful discrimination. Further, the record as a whole does not support
a finding that the agency was motivated by discriminatory animus when it
engaged in the alleged discriminatory actions. Regarding reprisal, the
record does not establish that complainant's supervisor was retaliating
against complainant; that, prior to the completion of her affidavit
in April 2006, for the instant complaint, S-2 knew of complainant's EEO
activity; or that the HRS was aware of complainant's EEO activity. The AJ
found that although complainant's supervisor may have harbored animosity
toward her, the supervisor's animosity was due to the supervisor's
belief that complainant was a "liar" and that he believed her return to
work was "an injustice." The AJ found that this animus was not based
on retaliation. The AJ noted that although complainant's supervisor
had participated in a mediation with complainant in July 2004, during
which complainant acted as the EEO representative for another worker,
the event was not remembered by complainant's supervisor.
Considering the dismissed claims as part of an overall claim of
harassment, the agency has also articulated legitimate, nondiscriminatory
reasons for its conduct. Complainant failed to establish by a
preponderance of the evidence that the harassment complained of was
based on her sex or in retaliation for protected EEO activity. We
also find that complainant failed to show 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.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999). The record reflects that the agency's actions were
legitimate and not based on complainant's membership in a protected
class or in retaliation for prior protected EEO activity.
The agency's decision finding no discrimination is AFFIRMED.
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
April 17, 2009
__________________
Date
1 The record reveals that the agency terminated complainant from her
employment for falsifying her workers' compensation claim after she
was followed by private investigators and investigated. The Notice
of Removal charged complainant with making false statements related to
her activities while claiming Office of Workers' Compensation benefits.
Complainant returned to work on July 5, 2005, pursuant to a decision by
an arbitrator who found that management had violated complainant's due
process rights in terminating her.
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0120071782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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