0120083325
01-16-2009
Linda F. Gray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda F. Gray,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083325
Agency No. 1H-302-0042-07
Hearing No. 410-2008-00130X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 9, 2008 final order concerning her equal
employment opportunity (EEO) complaint alleging 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. Complainant alleged that the agency
discriminated against her on the bases of race (African-American), sex
(female), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when she was subjected to a hostile work
environment when:
1. On June 7, 2007, she was placed on Emergency Placement in an
Off-Duty Status; and
2. On June 21, 2007, she was informed that she was being removed from
her position as Plant Manager to the position of Manager, Distribution
Operation at the North Metro facility.
The record reveals that complainant was an EAS-24 Plant Manger at
the agency's Airport Mail Center (AMC). That facility contained an
automated high-tech mail processing machine called an Automated Package
Processing System (APPS).1 Complainant was the only Plant Manager within
the Atlanta District who had this kind of machine in her facility.
On or around May 17, 2007, an audit revealed that the APPS machine was
not being properly operated or maintained. The results were forwarded
to management and three levels of management contacted complainant's
supervisor regarding these problems. Technical representatives from the
machine's manufacturer were brought in to help assess the problems with
the machine. On June 7, 2007, complainant's supervisor, the Senior Plant
Manager (SPM) relieved complainant and the Maintenance Manager of their
duties at the AMC.
The SPM temporarily placed complainant into a non-duty status, with pay,
until he could find an appropriate temporary assignment for her outside
the AMC. A temporary position was found for complainant, and she was
directed to report back to duty effective June 21, 2007.
On December 5, 2007, the Atlanta District Manager issued a disciplinary
Decision concerning complainant's unsatisfactory performance with respect
to the APPS machine. He officially reassigned complainant form her level
EAS-24 Plant Manager position at the AMC to a level EAS-24 Manager of
Distribution Operations position at the North Metro facility.
Complainant filed the instant EEO complaint in response to this action.
She maintained that the SPM discriminated against her on the bases
of race and sex when he took her out of her Plant Manager position in
June 2007. She also alleged a hostile work environment existed in the
Atlanta District toward its African-American female managers.2 Finally,
she alleged that SPM took her out of her Plant Manager's position because
she engaged in protected activity on May 28, 2007.
On appeal, complainant contends that an audit showed that the SPM's
plant had the same deficiencies that her plant had and yet he was
not reassigned. Complainant also contends that she continues to be
retaliated against because with her new position she is required to
drive 76 additional miles each day to get to the North Metro P&DC.3
Following an investigation by the agency, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision finding no discrimination. 4 The AJ found that complainant
failed to establish a prima facie case of discrimination as to any
of her bases but assuming that she had, the agency had articulated
a legitimate nondiscriminatory reason for its action. Specifically,
the agency maintained that complainant was removed from her position to
ensure that the operational and maintenance problems for the APPS machine
would be corrected. Moreover, the agency maintained that complainant
was removed from her position because she was the Plant Manager when
the problems and damage to the machine occurred. The agency indicated
that a mechanical breakdown of the machine would have seriously harmed
the efficiency of the mail service. Additionally, the agency maintained
that complainant did not initiate her protected activity until May 28,
2007, which was after the discovery of the problems with the machine
and after the complaints from the high level supervisors. The agency
also maintained that complainant could not show that she was subjected
to a hostile environment because there was no evidence that any action
was taken because of a prohibited factor. The AJ found that complainant
failed to show that its articulated legitimate nondiscriminatory reason
was pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Commission finds that the Administrative Judge's issuance of a
decision without a hearing was appropriate because no material facts were
found to be at issue. Further, we agree that even if we assume arguendo
that complainant established a prima facie case of discrimination as to
all bases, the agency articulated legitimate nondiscriminatory reasons
for its actions, namely, that complainant was placed in to a non-duty
status and was removed from her position because of serious maintenance
deficiencies with respect to the APPS machine. The agency indicated that
had the APPS machine stopped working it would have severely harmed the
efficiency of the mail service.
In addition, with respect to complainant's claim that she was subjected to
a hostile work environment, we find that complainant has not established
that the incidents complained of were sufficiently severe or pervasive as
to create a hostile work environment. The evidence shows that complainant
was subjected to discipline because of the condition of the APPS machine.
We find the evidence supports that reassigning complainant from her
position was a business decision related to the efficiency of the mail
service and was not motivated by unlawful discriminatory animus.
Further, with respect to complainant's contentions on appeal, the record
shows that complainant's plant is not substantially similar to the plants
under SPM's control because she was the only one in the area with the
APPS machine while the other plants contained mail sorting machines.5
Finally, we find that complainant has not demonstrated that the agency's
legitimate nondiscriminatory reasons were pretext for discrimination.
Accordingly, the Commission finds that the record evidence does not
establish that discrimination occurred. Therefore, the agency's final
action is finding no discrimination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 16, 2009
__________________
Date
1 The APPS machine was used to sort Priority Mail, and it was the only
such machine in the District. The machine had an enormous production
capacity, and the managers, believed that a mechanical breakdown of this
machine would have devastating consequences on the mail service.
2 The record reveals that complainant's position was filled by an
African-American female. Further, 90% of the supervisors and managers
within the Atlanta District are African-American. About 75% of
the current Plant Managers are African-American females. The current
highest level Executive in the Atlanta District, the District Manager,
is now an African-American female.
3 With respect to complainant's claim of continued retaliation, she is
advised to contact her EEO office concerning that matter.
4 The AJ granted the agency's Motion for Summary Judgment and
incorporated the Motion into her decision.
5 The record shows that the primary mail sorting machine in the Atlanta
and North Metro area is the Delivery Bar Code Sorter (DBCS). There are
approximately 35 DBCS's as opposed to one APPS. It takes 2 employees
to operate a DBCS but 20 to 40 to operate an APPS. Consequently, the
mechanical failure of the APPS machine, due to insufficient preventive
maintenance, is a much more serious concern than the similar failure of
a single DBCS machine.
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0120083325
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083325