01A22112_Hicks
03-10-2003
Mary A. Hicks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Hicks v. United States Postal Service
01A22112
March 10, 2003
.
Mary A. Hicks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22112
Agency No. 4K-220-0065-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. Sec. 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sec. 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. Sec. 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a clerk at the agency's Alexandria, Virginia Main Post Office
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on May 31, 2001, alleging that she was discriminated
against on the bases of race (White), sex (female) and age (date of birth:
November 30, 1950), when 1 ) her request for a prime time vacation slot
was initially denied but later approved; 2) she was not permitted to
work overtime until she complained about a co-worker working overtime;
3) she was not permitted to work SDO (scheduled day off) overtime; 4)
a co-worker cursed and directed vulgar language at her; 5) she used
five days of sick leave due to the stress of her work environment; 6) a
supervisor made a concerted effort to reduce her overtime; 7) overtime was
not equalized between clerks; 8)overtime was used to replace her on her
scheduled days off but she is not allowed overtime when others were off.
The agency dismissed issues 1 and 2 for failure to state a claim and
conducted an investigation of the remaining issues. At the conclusion
of the investigation, complainant was informed of her 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. Sec. 1614.108(f), the agency
issued a final decision finding no discrimination. From that decision,
complainant brings the instant appeal.
Procedural Dismissals
The regulation set forth at 29 C.F.R. Sec. 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. Secs. 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Here, accepting the allegations of issues 1 and 2 as true, complainant did
not suffer any harm or loss with respect to a term, condition or privilege
of employment. She was ultimately able to obtain both the favorable
vacation schedule and the overtime work she sought. We conclude that
complainant was not aggrieved by the agency's actions and that issues
1 and 2 were properly dismissed for failure to state a claim.
Overtime
Several of the issues that were accepted for investigation raise claims of
disparate treatment discrimination in the denial of overtime work (issues
3, 6, 7 and 8). 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). She must generally establish a prima facie case by demonstrating
that she 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, however, 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).
Here, the agency explains that complainant did not receive as much
overtime work as the comparators she identifies outside her protected
groups because those comparators were qualified to perform certain types
of work which complainant was not qualified to do. For example, some
of the comparators were �scheme-qualified� which complainant was not.
As a result there was more overtime work available for the comparators.
This is a legitimate, nondiscriminatory reason for the agency's actions.
Complainant has failed to show it to be a pretext for discrimination.
Harassment
In issues 4 and 5 complainant asserts that she was subjected to crude
language and a stressful work place. We take these to be claim of hostile
work environment harassment. In determining whether an objectively
hostile or abusive work environment existed, the trier of fact should
consider whether a reasonable person in the complainant's circumstances
would have found the alleged behavior to be hostile or abusive. Even if
harassing conduct produces no tangible effects, such as psychological
injury, a complainant may assert a Title VII or ADEA cause of action if
the discriminatory conduct was so severe or pervasive that it created
a work environment abusive to employees because of their race, gender,
religion, national origin or age. Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995)( citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993)) req. for recons. den. EEOC Request
No. 05970995 (May 20, 1999). Also, the trier of fact must consider
all of the circumstances, including the following: 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, 510 U.S. at 23.
Here, we conclude that complainant has failed to prove that conditions
about which she complains have subjected her to unlawful harassment. The
cause of the problem is a single female co-worker, with whom complainant
has an apparently intractable personality conflict, who regularly uses
profane and sexually crude language. This alone is insufficient to
establish a discriminatorily hostile work. There is no evidence that
offensive conduct was directed at complainant because of her sex, race
or age. Nor are the conditions described by complainant sufficiently
severe or pervasive to interfere with complainant's work performance.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
March 10, 2003
__________________
Date