0120071787
04-17-2009
Nadine B. Mann, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nadine B. Mann,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071787
Agency No. 1C-276-0010-06
Hearing No. 430-2006-00236X
DECISION
Complainant filed an appeal with this Commission from the January 31,
2007 decision of the agency finding no discrimination.
Complainant alleges 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. Specifically, complainant,
a Part-time Flexible (PTF) Mail Processing Clerk, alleged that the agency
discriminated against her on the bases of race (Black) , sex (female),
age (41), and reprisal for prior protected EEO activity when:
1. On December 31, 2005, complainant's supervisor called her into the
office to discuss why complainant had not remained for overtime on
December 24, 2005.
2. Complainant's supervisor intentionally forgot to tell complainant to
remain for overtime on January 27, 2006.
3. Complainant was subsequently issued a Notice of Suspension, dated
February 13, 2006.
After its investigation, the agency informed complainant of her right
to request a hearing or of her right to request issuance of an agency
decision. Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ remanded the matter to the agency for a decision on
the grounds that complainant failed to comply with the orders of the AJ
and to participate in the hearing process. Complainant does not argue
that the AJ erred and we find no error in the AJ's cancellation of the
hearing.
As an initial matter, the Commission notes that on April 10, 2006, the
agency issued a decision dismissing claim 1 on the grounds that it failed
to state a claim. There is no indication in the record that complainant
challenged the dismissal of claim 1 with the AJ or raised the matter in
the instant appeal. Nonetheless, claim 1 fails to state an independent
claim and was properly dismissed because complainant failed to show
that she suffered a loss or harm as a result of the alleged incident.
Therefore, we find that claim 1 was properly dismissed pursuant to 29
C.F.R. �1614.107(a)(1).
In its decision, the agency found regarding the remaining claims
that complainant failed to establish a prima facie case of sex
or age discrimination, noting that complainant failed to identify
any similarly situated employee, not in her protected group, who was
treated more favorably than she was treated. The agency also found that
complainant failed to establish a prima facie case of reprisal, noting
that because complainant's prior EEO activity was initiated in July
2000, complainant failed to establish a causal relationship between the
prior protected activity and the allegations of the instant complaint.
The agency further found that complainant failed to show that the alleged
discriminating officials were aware of complainant's prior protected
activity. The agency further concluded that even if complainant had
established a prima facie case, the agency had articulated legitimate,
nondiscriminatory reasons for its actions.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
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 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).
To establish a claim of harassment, a complainant must show that:
(1) complainant is a member of the statutorily protected class; (2)
complainant was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
A single incident or group of isolated incidents will 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 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,
supra.
The record reveals that the Supervisor of Distribution Operations (SDO)
in the AFSM Operations asked complainant and two other employees to work
overtime. The SDO stated in her affidavit that complainant insisted that
the SDO create a rotation roster for Tour 3 PTF employees to work overtime
on the AFSMs (flat sorting machines) on Tour 1. The SDO also stated that
complainant stated that she would not be working overtime for Tour 1 on
the AFSMs. The SDO stated that she told complainant that she needed to be
cautious when telling a supervisor what she was not going to do because
it could be interpreted as insubordination. The SDO stated further that
complainant then told the SDO to "[f]uck that" and to "do what the fuck
[the SDO]" wanted to do. The SDO stated that she contacted the Acting
Manager of Distribution Operations and had complainant removed from
the premises. The record reveals that an investigation was conducted
concerning the incident. The SDO issued complainant a notice of
suspension for improper conduct and failure to follow instructions.
The record also reveals that the suspension was reduced to a letter of
warning in April 2006, as a result of the grievance process.
The record contains complainant's PS Form 3971, dated January 27, 2006.
The record reveals that when employees did not want to be considered
for overtime, the Form 3971 had to be submitted to the supervisor for
approval or disapproval. The record contains the affidavit of a Mail
Handler who stated that she could not recall the exact date but that all
employees on the overtime desired list and PTF flat mail sorters were
told of overtime. The Mail Handler also stated that she had complainant
sign a Form 3971 and complainant did not stay for overtime. Further,
the Acting Manager of Distribution Operations stated that complainant
had been informed there was mandatory overtime, but complainant stated
she would not work the overtime.
Upon review, we find that the agency did not discriminate against
complainant. Moreover, the agency has articulated legitimate,
nondiscriminatory reasons for the actions which it took and accordingly,
the Commission need not determine whether complainant established a
prima facie case. Complainant failed to show by a preponderance of the
evidence that the agency's articulated reasons were mere pretext to hide
unlawful discrimination or that the agency's actions were motivated by
discriminatory animus. To the extent that complainant is claiming that
she was subjected to harassment, the Commission finds that the claims,
including dismissed claim 1, were not so severe or pervasive so as to have
altered the conditions of complainant's employment. Further, the agency
has articulated legitimate, nondiscriminatory reasons for the tangible
employment actions in which it engaged. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
The agency's decision is AFFIRMED.
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 17, 2009
__________________
Date
5
0120071787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013