01a53844
11-08-2005
Keisha M. Askew, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keisha M. Askew v. United States Postal Service
01A53844
November 8, 2005
.
Keisha M. Askew,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53844
Agency No. 1K-209-0024-04
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her formal 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.
During the relevant time, complainant was employed as a Casual Clerk at
the agency's Suburban Processing & Distribution Facility in Gaithersburg,
Maryland. Complainant sought EEO counseling and subsequently filed a
formal complaint on May 3, 2005. Therein, complainant claimed that
she was discriminated against on the bases of race (African-American),
sex (female), and age (D.O.B. 4/28/82) when:
(1) on March 6, 2004, she was not provided CA Forms (forms to file an
Injury Compensation Claim);
(2) on March 16, 2004, she was denied work and subsequently terminated
from the Postal Service effective March 30, 2004;
(3) on March 16, 2004, she was harassed about her postal identification
card; and
(4) on May 19, 2004, she was sent a PS Form 50, Notification of Personnel
Action, stating "Refused to Return Postal Property."
On June 16, 2004, the agency issued a partial dismissal. The agency
accepted for investigation claims (1) and (2). The agency dismissed
for failure to state a claim claims (3) - (4), and the basis of age,
pursuant to 29 C.F.R. � 1614.107(a)(1).
At the conclusion of the investigation of claims (1) and (2),
complainant was informed of the right to request a hearing before an
EEOC Administrative Judge 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.
In its April 19, 2005 FAD, the agency found no discrimination regarding
claims (1) and (2). The agency determined that complainant failed
to establish a prima facie case of race and age discrimination.
Further, the agency determined that management articulated legitimate,
nondiscriminatory reasons for its employment actions, and that complainant
did not establish that these reasons were a pretext for discrimination.
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, she 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).
Claims (1) and (2)
The agency articulated legitimate, non-discriminatory reasons for its
employment actions. The record contains an affidavit from complainant's
Supervisor. Therein, the Supervisor stated that while she was not aware
of complainant's injury, she did not refuse to provide complainant CA
Forms (claim (1)).
Regarding claim (2), the Supervisor stated that as the deciding official,
she terminated complainant's employment because complainant violated the
agency's Zero Tolerance policy and because of disrespectful treatment
towards her. The Supervisor addressed an incident that occurred in
late March 2004, wherein complainant incorrectly communicated to agency
officials that she and the Supervisor had resolved differences between
them, as reflected in the following series of events. The Supervisor
stated that on March 23, 2004, she noted that complainant was missing from
her section for more than 15 minutes; and that although the Supervisor
paged her, complainant did not respond to her messages. The Supervisor
stated that a supervisor (S1), "called me back and said that [Complainant]
came to her, she wanted to work somewhere else." The Supervisor,
S1 and complainant then had a meeting, wherein the Supervisor asked
complainant why she walked away from her section without informing her.
The Supervisor stated that complainant denied walking away, and that
"every word that came out of her mouth was said with attitude."
After complainant stated that her back hurt, the Supervisor sent her
home for a one-week period, in order to rest her back. The Supervisor
stated that a few days later, S1 asked her if she (the Supervisor)
had recently spoken to complainant. The Supervisor stated that she had
not spoken to complainant since March 23, 2004. S1 then informed the
Supervisor that complainant was presently in the office of the Manager
Distribution Operations, where complainant had asserted that all issues
between her and the Supervisor had been resolved. The Supervisor stated
that upon arriving at the MDO's office, the MDO asked her if she had
spoken to complainant recently. The Supervisor stated that (contrary
to complainant's assertion) she had not spoken to complainant recently;
and that MDO and S1 then "looked at [Complainant] with disbelief.. .�
The MDO then asked the Supervisor if she would presently like to speak
with complainant, but that the Supervisor declined, and instead informed
him that complainant's services were no longer needed.
Further, the Supervisor stated that a few minutes later, another
supervisor (S2) followed complainant out of the building after the above
referenced meeting, and called out to her asking her to help her get
complainant's entrance badge back. The Supervisor stated that because
complainant entered the rest room, she and S2 waited until complainant
came out. The Supervisor stated that when complainant came out of the
rest room, S2 asked complainant for her entrance badge and put out her
hand to receive it. The Supervisor stated that complainant claimed she
did not have her badge and "pushed [S2's] arm in the air and said get
out of my way before I call the police." The Supervisor stated that
complainant then walked towards the entrance door yelling at her and S2
"I don't have to take this shit," and directed other profanities towards
them. With respect to complainant's claim that the Supervisor put her
hands on her, the Supervisor stated "at no time did I put my hands on
[Complainant] that day or any day."
The record further contains an affidavit from the Acting Supervisor,
Distribution Operations. Therein, the Acting Supervisor stated that
while he did not participate in complainant's termination, he stated
that complainant was terminated from agency employment based on the
following factors: complainant "consistently misrepresented facts;
failed to follow the instructions of her supervisor; failed to maintain
her presence on a work assignment; and did not perform assigned tasks
in a competent manner."
We find that complainant has not demonstrated that the agency's
articulated reasons for its actions, as discussed above, were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
Dismissal of claims (3) and (4) and age as a basis
Complainant claimed that she was discriminated against on the bases
of race, sex and age when on March 16, 2004, she was harassed about
her postal identification card (claim (3)); and on May 19, 2004, she
was sent a PS Form 50, Notification of Personnel Action, regarding
her termination, which included the written entry: "Refused to Return
Postal Property (claim (4))."<2> In a partial dismissal dated October
25, 2002, the agency dismissed claims (3) and (4) and age as a basis
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The agency determined that complainant did not provide any evidence
to suggest that she suffered a personal loss or harm regarding a term,
condition or privilege of her employment.
Regarding claim (3), the agency found that the alleged incident did not
rise to the level of creating a hostile work environment. The Commission
agrees with the agency that the alleged incident is not sufficiently
severe or pervasive to state a claim of discriminatory harassment and
does not state a claim. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). Therefore, the Commission finds
that the agency properly dismissed claim (3) for failure to state a claim.
Regarding claim (4), the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. See Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Moreover, complainant failed to show how she suffered a personal loss
or harm regarding a term, condition or privilege of her employment by
the alleged act.
Finally, regarding the basis of age, the record indicates that, at the
time of the alleged discriminatory acts identified in claims (1) - (4),
complainant was only 21 to 22 years old, and therefore did not come
under the minimum age requirement identified by the ADEA. Therefore,
we find that the agency properly dismissed the basis of age.
Accordingly, the agency's dismissal of claims (3) and (4) and the basis
of age 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 8, 2005
__________________
Date
1The record reveals that during the relevant period complainant changed
her last name from "Minor" to "Askew."
2The record reflects that upon her termination from agency employment,
the agency determined that complainant refused to return her entrance
badge when requested to do so. The record contains a statement
from complainant wherein she indicated that when confronted by agency
officials on this matter, she claimed that she had lost the badge the
preceding evening when traveling in a taxi.