0120100404
04-22-2010
Mari T. Thomson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Mari T. Thomson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100404
Hearing No. 480200900263X
Agency No. 4F920014107
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 29, 2009 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. For the following reasons, the Commission AFFIRMS the
agency's final action.
On June 20, 2007, complainant contacted an EEO Counselor and filed
a formal complaint on September 21, 2007 alleging that the agency
discriminated against her on the bases of race (White), sex (female),
color (White), age (46), and reprisal for prior protected EEO activity
when:
1. On June 9, 2007, she was issued a Letter of Warning (LOW) for
unacceptable work performance and
2. Complainant alleges she has continuously been treated differently
than her peers and singled out in regards to but not limited to:
-told she could no longer use her personal car to get lunch;
-held to certain rules/policies while others are permitted to violate
them, i.e. leaving work area to talk to friends, deviating from office
flow charts, use of official forms, collecting bottles and cans while on
route for personal profit, taking extended breaks or lunches, shopping
or deviating from work locations during work hours; and
-told that she must give away only the end portion of her route when
giving away a section for auxiliary assistance.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing finding no discrimination. The agency's final
order implemented the AJ's decision. Complainant failed to submit any
persuasive arguments or evidence in support of her appeal in this matter.
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, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the 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.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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 with in this case, however, since 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).
At the time of the relevant events in this matter, complainant was
employed as a City Carrier at the agency's El Cajon Main Post Office in
El Cajon, California. In claim 1 of the complaint at issue, complainant
states that on June 9, 2007, she received a LOW for unacceptable
work performance. The LOW indicates that on Monday, May 21, 2007,
complainant's supervisor saw that complainant had little to no mail
left to case so he asked what her approximate leave time would be.
Complainant responded that she did not know. The record indicates
that according to agency policy, carriers are required to assess their
workload and verbally notify management when he or she will be able to
case all mail distributed to the route, perform other required duties
and leave on schedule or in the alternative, when he or she will be able
to complete delivery of all mail. Agency policy additionally requires
that carriers in complainant's position are required to make such an
assessment of their workload no later than "immediately after the final
receipt of mail." The agency indicated that complainant's response to
her supervisor on May 21, 2007 violated agency policy as indicated.
The record further discloses that complainant's failure to designate
a leave time put complainant in the position of requesting overtime.
However, according to the agency, complainant's request for overtime
lacked significant detail to justify the need for overtime.
The Commission has examined the complainant's contentions on appeal,
but finds no persuasive evidence that complainant was discriminated
against as alleged. The Commission concurs with the decision of the AJ
in this matter that complainant failed to establish a prima facie case
of discrimination as alleged. Even assuming arguendo that complainant
successfully established a prima facie case, the Commission finds that the
agency articulated legitimate, nondiscriminatory reaons for its action.
Namely, we find that the agency issued complainant a LOW on June 9,
2007 for her failure to give a proper estimate of work or leave time
despite her awareness to do so.
Hostile Work Environment
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually 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).
In claim 2, complainant lists several ways in which she alleges she was
treated differently than her peers regarding the manner in which she
was required to take lunch and other breaks, the way in which certain
agency policy and procedure was applied to her. Complainant fails
however to offer evidence of similarly situated individuals treated
more favorably than complainant regarding these matters. In addition
the record discloses that complainant fails to provide significant
detail regarding these events in time, place or circumstance. Moreover,
complainant has failed to demonstrate that she suffered any adverse action
as a result of the agency's alleged conduct concerning these incidents.
To the extent that complainant has alleged that these alleged agency
actions amounted to a hostile work environment, we find that complainant
has not presented a set of facts which would establish that she was
subjected to severe or pervasive conduct that created a hostile work
environment and altered the conditions of complainant's employment.
Complainant has failed to establish that the incidents identified in
claim 2 of her formal complaint caused her to suffer harm with respect
to the terms and conditions of her employment.
Because the agency articulated legitimate, nondiscriminatory reasons for
its actions, complainant is required by law to show that the reasons are
a pretext for discrimination. Having considered complainant's assertions,
the Commission finds that complainant has not established pretext.
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,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 22, 2010
__________________
Date
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0120100404
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100404