0120073022
10-05-2007
Roxann V. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roxann V. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073022
Agency No. 4J-630-0007-07
DECISION
On June 19, 2007, complainant filed an appeal from the agency's May 17,
2007 final action concerning her equal employment opportunity (EEO)
complaint claiming 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
On December 23, 2006, complainant filed a formal EEO complaint, wherein
she claimed that she was discriminated against on the bases of race
(African-American), sex (female), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when on
August 29, 2006, her requests not to enact and then later to terminate a
"punitive, indefinite non-procedural detail" were denied and her report
of a third party statement "they don't take that from colored people and
I better not be caught after dark in the vicinity of where the employee
lives" was ignored.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final action pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
The agency dismissed the claim concerning the third party statement
pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state
a claim. The agency determined that complainant did not suffer harm to
a term, condition, or privilege of her employment.
With regard to the claim concerning complainant's reassignment from the
Dow facility in Dow, Illinois to the Kane facility in Kane, Illinois,
we observe initially that the reassignment became permanent on January
17, 2007. The agency determined that complainant was reassigned
because she disregarded instructions from her Manager and District
Labor Relations experts after she had improperly handled rural carrier
grievance situations. According to the agency, the work environment
at the Dow facility with the employees and the rural carriers union
had disintegrated because of complainant's actions. The agency stated
that despite complainant's discussions with agency officials about how
to handle grievances, she refused to utilize any of the advice or obey
orders, insisting that her interpretation was correct. The agency noted
that complainant would not have to deal with the rural carriers union
at the Kane facility. The agency determined that complainant failed to
show that these reasons for her reassignment were pretext intended to
mask discriminatory intent.
On appeal, complainant contends that the agency has falsified information,
made false, misleading and misconstrued statements regarding her
performance, character and abilities, and falsified her statements.
Complainant maintains that the grievant refused to comply with contract
procedures to meet with her to discuss and attempt resolution of her
grievance. Complainant argues that agency representatives circumvented
the contract and instructed her to meet with the union steward after the
grievant had previously caused a waiver of her grievance. According
to complainant, her detail to the Kane facility was in violation of
adverse action procedures. Complainant argues that the agency engaged
in pretext to obscure reprisal when it claimed that the reassignment
was for developmental and training reasons. Complainant states that
she has not received development training for more than a year.
In response, the agency asserts that complainant was given a developmental
reassignment as Postmaster due to the climate in her office. The agency
maintains that complainant did not suffer a loss of pay or benefits.
According to the agency, the reassignment had been considered for a year
before complainant initiated EEO contact in her prior complaint as a way
to reduce conflict in her office. The agency maintains that it did not
ignore complainant's concerns about the statement found written at her
office. The agency notes that efforts were made to determine whether the
facility was unsafe and the police and Inspection Service were notified
of the incident. According to the agency, it never received follow-up
from the police, the Inspection Service, or complainant.
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).
To establish a claim of harassment based on sex, race, or reprisal,
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. 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. 915.002 (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).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of race, sex and reprisal discrimination.
Next, we shall consider whether the agency articulated legitimate,
nondiscriminatory reasons for its actions. We find that the agency
articulated legitimate, nondiscriminatory reasons in its final action
for its various alleged actions. Complainant attempted to establish
pretext with regard to her reassignment by stating that the agency did
not follow its own regulations in reassigning her. However, this argument
does not address the issue of discrimination and the agency's explanation
for the reassignment. The agency stated that complainant was reassigned
because she failed to obey instructions from agency officials as to how
to handle rural carrier grievance situations. The agency stated that
the workplace at the Dow facility had developed conflict and dissension
under complainant's direction. Complainant's arguments and evidence have
not established that the agency mischaracterized the situation or that
the reassignment was based on any factor other than that articulated by
the agency. We find that the reassignment of complainant was not the
result of discrimination.
As for the third party statement that was allegedly directed at
complainant, we find that the statement by itself did not cause
complainant to suffer harm to a term, condition, or privilege of her
employment. Moreover, the statement was an isolated remark that was
not sufficiently severe or pervasive to rise to the level of harassment.
Therefore, we find that this claim was properly dismissed for failure to
state a claim. Further, even if the claim did state an actionable claim,
we find that the agency did not engage in discriminatory harassment as
the agency took appropriate steps in addressing the situation when the
Manager, Post Office Operations, told complainant to inform the police
and the Inspection Service of the incident.
The agency's final action 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
October 5, 2007
__________________
Date
2
01200730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073022
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