01A31930_r
05-30-2003
Patricia Holmes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia Holmes v. United States Postal Service
01A31930
May 30, 2003
.
Patricia Holmes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31930
Agency No. 4H-300-0084-01
DECISION
Complainant timely initiated an appeal from a final agency decision
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. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant claimed that she was discriminated
against on the bases of race (African-American) and sex (female) when:
(A) on October 23, 2000, she was denied a detail to a Labor Relations,
EAS-17 position; and
(B) on October 25, 2000, she was harassed by the Manager, Labor
Relations.
The record reveals that during the relevant time, complainant was
employed as a Human Resources Associate, EAS-11 at the agency's
facility in Atlanta, Georgia. Believing that she was the victim of
discrimination based on race and sex, complainant sought EEO counseling
and, subsequently, filed a complaint on July 4, 2001.<1>
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. Complainant
requested a hearing but subsequently withdrew the request in favor of
a final decision.
On January 7, 2003, the agency issued a FAD finding no discrimination.
Specifically, the agency determined that complainant failed to establish
a prima facie case of discrimination on the bases of race and sex.
Specifically, the agency determined that complainant and four other female
employees had previously been detailed to the position of Labor Relations
Specialist; and that four of these five female employees were black.
The agency noted that a white female who was detailed to the Labor
Relations Specialist position in October 2000, had not been previously
detailed into the position.
While the record reflects that, when accepting the instant complaint
for investigation, the agency determined that complainant alleged
discrimination on the bases of race and sex, the agency nonetheless stated
in its final decision that complainant claimed that she was denied the
detail as �an act of retaliation.� The agency determined, however,
that the record does not support a finding that complainant had prior
EEO activity that would give her �standing to file on retaliation.�
Regarding the incident of alleged harassment dated October 25, 2000, the
agency determined that the harassment cited by complainant was nothing
more than an isolated incident involving the Manager, Labor Relations
that was neither severe enough, nor pervasive enough to rise to the
level of a hostile work environment. The agency noted that the record
supported a finding that on October 25, 2000, complainant and the Manager
engaged in a meeting that was categorized by a witness as �very frank
and forthright,� and that at one point during the meeting, the witness
stated that he had to instruct both parties (complainant and the Manager)
not to shout at each other and to act civil toward each other.
Denial of a detail
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case 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).
Upon our review of the record, we determine that the agency properly
found that complainant failed to demonstrate that similarly situated
employees not in complainant's protected classes were treated more
favorably under similar circumstances, relating to the assignment of
details to the Labor Relations position. Accordingly, the agency's
finding of no discrimination regarding this claim is AFFIRMED.
Harassment claim: Incident of October 25, 2000
To establish a claim of harassment, a complainant must show that (1) she
is a member of the statutorily protected class; (2) she 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. Humphrey v. USPS, 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). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Our review of the evidence in its entirety leads us to conclude
that complainant has not shown by a preponderance of the evidence
that she was subjected to unlawful harassment on October 25, 2000.
The record contains a copy of an affidavit dated April 12, 2002, from
a Labor Relations Specialist. Therein, the Labor Relations Specialist
stated that at the time of the October 25, 2000 incident, he was an
Acting Manager Human Resources and that the meeting was �very frank
and forthright� between complainant and the Manager, Labor Relations.
The Labor Relations Specialist further stated that during the meeting,
he had to stop complainant and the Manager, Labor Relations from �shouting
at each other and instructed both to act in a civil nature or the meeting
would end.� Accordingly, the agency's decision finding that complainant
was not harassed is AFFIRMED.
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. � 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 (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. � 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
May 30, 2003
__________________
Date
1Complainant initially raised disability as a
basis. By letter dated July 9, 2002, to the EEO Complaints Investigator,
complainant withdrew the basis of disability, stating that she wished
to proceed on the race and sex discrimination claims.