0120082400
08-05-2008
Michelle Y. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle Y. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082400
Agency No. 1F-904-0064-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 7, 2008 final decision 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.
During the period at issue, complainant was employed as a Mail Handler
Equipment Operator, M-05, at the agency's Los Angeles Bulk Mail Center
in Bell, California.
On August 31, 2007, complainant filed the instant complaint. Therein,
complainant claimed that the agency discriminated against her on the
bases of race (African-American), sex (female), color (dark skinned),
age (43), and in reprisal for prior EEO activity when:
(1) on May 30, 2007, her time was deleted;
(2) on June 14, 2007, she was charged Absent Without Official Leave
(AWOL) whereas other employees were also late but were not charged AWOL;
(3) on June 20, 2007, after numerous requests, she became aware that
she would not be paid for the 2006 Thanksgiving holiday;
(4) on August 18, 2007, she was yelled and screamed at by an Acting
Supervisor; and
(5) on or around September 21, 2007, she became aware that she was
not paid for the Labor Day holiday.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did not
respond. On April 7, 2008, the agency issued the instant final decision.
In its April 7, 2008 final decision, the agency dismissed claims (1) and
(4) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant was not aggrieved. The agency also dismissed
claims (1) and (4) pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds
of mootness. The agency nonetheless proceeded to analyze the instant
complaint on the merits, and concluded that complainant did not establish
a prima facie case of disparate treatment and harassment based on race,
sex, color, age and retaliation. The agency further found that assuming,
for the sake of argument, complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were a pretext.
Regarding claim (1), complainant's first-level supervisor (S1) stated
that on May 30, 2007, complainant worked 3.90 hours and requested sick
leave for 4.10 hours. S1 further stated that on May 31, 2007 and June 1,
2007, complainant requested sick leave "it was determined she was out
of S/L and it was deleted and changed to SWOP."
The Supervisor Distribution Operations (SDO) stated that she was
complainant's supervisor on May 30, 2007. SDO stated "I cannot explain
why [Complainant's] time was deleted because I did not delete her time."
SDO stated, however, she put complainant's deleted time back in the
system. The record reflects that complainant was paid eight (8) hours
of sick leave for May 30, 2007.
Regarding claim (2), complainant's other supervisor (S2) stated that
because complainant reported to work late on June 14, 2007, she asked
complainant for an explanation for her tardiness. S2 stated that
complainant "stated that she had to drop her daughter off at school
[;] her verbal explanation was unacceptable so complainant was charged
AWOL-late." S2 stated "as the supervisor, I have a right to use ERMS and
3972's as a resource and reference when making determinations on approval
or disapproval of leave per the individual employee. The complainant's
attendance was referenced and influenced my decision." S2 stated that
initially complainant was charged AWOL but "after reconsideration and
speaking informally with the union I reconsidered and charged her LWOP [;]
administratively AWOL." S2 stated that complainant's race, sex, color,
age, and prior protected activity were not factors in her determination
to charge her AWOL.
With respect to complainant's claim that other employees were also
late but were not charged AWOL, S2 denied it. Specifically, S2 stated
that she also charged other employees AWOL "under similar circumstances
because this is the leave policy the way I understand it."
Regarding claim (3), the Acting Manager Distribution Operations (A1)
stated that complainant was not paid for the 2006 Thanksgiving holiday
because she was not on the clock the day before or after the Thanksgiving
holiday. Specifically, A1 stated "to be eligible for holiday pay,
you must be on the clock prior to and after the holiday."
Regarding claim (4), A1 denied yelling and screaming at complainant
on August 18, 2007. A1 stated that complainant "was just instructed
to take her lunch later since she worked during lunch time without my
permission so she can leave half an hour early."
Regarding claim (5), S1 stated that complainant was ineligible for
holiday pay because she reported to work late the day after the Labor
Day holiday. Specifically, S1 stated that complainant reported to work
late "the day after the Holiday, she did not have leave and was charged
LWOP for the time. To be eligible for the holiday pay, she was to be
on the clock the first hour after her holiday in a pay status."
A1 stated that because complainant "started her begin tour late and
because she did not have leave, she was charged LWOP for the time."
With respect to complainant's claim that other employees were treated more
favorably in that they were paid holiday pay and had the same days off,
A1 stated "no employees was treated more favorably. If the employee
was not eligible for the Holiday, they didn't get paid."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Id.
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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 (Z0408)
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
August 5, 2008
Date
6
0120082400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036