0120131318
08-05-2013
Sharhonda J. Delce, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Sharhonda J. Delce,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131318
Hearing Nos. 560201200070X, 560201200210X
Agency Nos. 4G730002611, 4G730002412,
DECISION
On February 28, 2013, Complainant filed an appeal from the Agency's January 29, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's facility in Britton, Oklahoma.
On April 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and/or reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
(1) on January 29, 2011, her start time was changed;
(2) on February 9, 2011, her supervisor showed up at Complainant's home on the day of a blizzard;
(3) on February 24, 2011, her start time was changed;
(4) on an unspecified date, her break time was changed;
(5) on February 18, 2011, she was subjected to an investigative interview;
(6) she was stalked on a constant basis and her supervisor invaded her personal space by stepping in too close to Complainant in her case;
(7) on February 28, 2011, March 15, 2011 and April 18, 2011, she was subjected to harassing route/office observations;
(8) on March 9, 2011, her supervisor made negative comments about her regarding her performance in front of other Agency officials;
(9) insults were regularly directed at Complainant;
(10) at least three times per week, she was given a "PM Questionnaire" when others were not;
(11) she was issued a letter of warning (LOW), dated March 9, 2011, on the charge of failure to follow instructions;
(12) she was issued a seven calendar day no time off suspension, dated March 28, 2011, on the charge of unauthorized use of overtime and failure to follow instructions; and
(13) on April 18, 2011, she was placed off the clock.
The record indicates that by amendments dated May 11, 2011, June 15, 2011, June 27, 2011, and July 13, 2011, Complainant also alleged that;
(14) on April 23, 2011, she was put off the clock;
(15) on May 9 and 12, 2012, her supervisor interrogated Complainant for 36 and 40 minutes respectively;
(16) on May 17, 2011, her supervisor watched her while Complainant spoke with a manager;
(17) on May 9, and May 27, 2011 her supervisor steeped into her case making Complainant feel uncomfortable;
(18) on May 21, 2011, Complainant's supervisor borrowed Complainant's arrow key and brought it to another carrier;
(19) on May 27, 2011, her supervisor threatened to write Complainant up for failing to curb her wheels on a postal vehicle;
(20) on May 28, 2011, Complainant's supervisor assigned another carrier to perform office work on Complainant's assigned route;
(21) on May 31, 2011, her supervisor unlocked the front of Complainant's vehicle where Complainant kept her personal items;
(22) on June 2, 2011, she was subjected to an investigative interview and subsequently followed out to her route;
(23) on June 6, 2011, Complainant's form 3996 was reviewed by both Complainant's supervisor and manager and they questioned her about it;
(24) on an unspecified date, her supervisor told her not to park her vehicle where she normally parks it which in turn caused Complainant to lose her lunch time responding to the request of her supervisor;
(25) on an unspecified date, Complainant's supervisor got too close to Complainant's body, and opened her bag to remove mail from the bag while Complainant was still wearing the bag on her body;
(26) on an unspecified date, she was assigned the first vehicle with GPS on it;
(27) she was issued an LOW dated June 15, 2011;
(28) on June 20, 2011, she was stopped on her route by her supervisor;
(29) on June 28, her supervisor knowingly interrupted Complainant's lunch and she was subsequently followed on her route;
(30) beginning on or about June 29, 2011, Complainant alleges that she has been unable to work as a result of the hostile work environment she has been subjected to and on January 30, 2012, was subjected to a meeting with the District Reasonable Accommodation Committee (DRAC);
(31) on her paystub dated January 20, 2012, Complainant noticed that her supervisor had stopped paying her;
(32) on or around January 25, 2012, she became aware that management was unable to accommodate her;
(33) on or about February 7, 2012, she received a letter notifying her that she would be removed from the postal service effective March 14, 2012; and
(34) on or around February 28, 2012, she became aware that she lost her step increase and the 1% automatic contribution to her thrift savings plan.
In this matter, Complainant has alleged generally that the Agency subjected her to a pattern of harassment as evidenced by numerous acts of alleged discrimination occurring in 2011 and 2012, as identified in claims (1) to (34).
At the conclusion of the investigation into her harassment claims, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
As an initial matter, we find that Complainant's primary claim is one of ongoing discriminatory harassment. We note that the Agency dismissed allegations (11) and (12) of the complaint, both discrete personnel actions, moot. Specifically, the Agency determined that the LOW, dated March 9, 2011 (allegation 11), and the seven-calendar day suspension dated March 28, 2011 (allegation 12), were rescinded and expunged from Complainant's record pursuant to an agreement reached in the grievance process. As such, the Agency found that the effects of the alleged violation were completely eradicated. Consequently, the Agency dismissed claims (11) and (12) pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(5). Alternatively, however, the Agency included claims (11) and (12) in its discussion on the merits of Complainant's allegation of hostile work environment harassment. In light of the rescission of these disciplinary actions through the grievance process, we agree that claims (11) and (12) are more appropriately addressed in the context of Complainant's harassment allegations.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining whether a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris. 510 U.S. at 22 (1993).
To establish a claim of hostile work environment, a complainant must show that: (1) complainant belongs to a 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 complainant's statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee. 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6. Even if harassing conduct produces no tangible employment action, a complainant may assert a Title VII claim if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of a prohibited reason. Harris, 510 U.S. at 22.
Turning now to Complainant's allegations, the record indicates that in claims (1) and (3), Complainant is challenging the decision to change her start time on January 29, 2011, and February 24, 2011. According Complainant's supervisor, Complainant's start time was changed so that she could complete her duties within her scheduled eight hours. Complainant's supervisor testified that changing Complainant's start time to 7:30 allowed other carriers to case her mail before she arrived. Therefore, she was be able to leave to deliver mail on her route right away, giving her more time to complete all deliveries for the day in an eight-hour period. In claim (2), Complainant alleges that her supervisor showed up at her home on the day of a blizzard. Complainant's supervisor came to Complainant's home in order to drive her to provide her transportation to and from work. The Agency indicates that according to instructions from the District office, supervisors were instructed to provide transportation to and from work for employees affected by adverse weather conditions. In claim (4), Complainant alleged that her break time was changed. The Agency contends, however, that Complainant's break time was never changed on a permanent basis. Specifically, the Agency indicates that on the date in question, Complainant was instructed not to go on her break until she had worked for one hour. Complainant admits that her time for break was only affected on that day.
In claims (5), (6), (7) (8), (25) and (29), Complainant alleges that she was subjected to harassing conduct by the Agency when she was given an investigative interview, stalked by her supervisor when he stepped too close to her and when she was observed in the office and on her route. Complainant further alleges that she was given a postal vehicle with a global positioning system (GPS) in it so that her whereabouts could be tracked by the Agency. Management witnesses explained that because Complainant failed to report to work on February 9, 2011. during a snow storm, and did not come to the door when her supervisor came to her house to provide her with transportation to work, she was given an investigative interview about the incident. The Agency further indicates that Complainant never advised her supervisor or other Agency official that she felt she was being stalked, nor did she inform her supervisor that he stepped in too close to her at her desk. Management witnesses also stated that Complainant was subjected to route observations in the normal course of operations as were other mail carriers. According to these witnesses, route observations were a normal course of action taken when there were concerns about a carrier's performance on his or her route. Because Complainant had trouble delivering the mail on her route within eight hours, the Agency observed her in the performance of her duties in an attempt to improve performance. Moreover, the Agency further asserts that Complainant failed to identify specific negative comments her supervisor made about her in front of other Agency officials.
In claim (9), Complainant alleged that racially motivated insults were directed at her. When asked for examples, she said that in January 2011, her supervisor said that he did not respect her because she was a "smart ass" and she needed to resign. Complainant explained that she believed remarks like this were racially motivated because she did not observe him speaking to white employees like this. There is no evidence that Complainant never reported to any other Agency official that she was receiving racially motivated insults or other derogatory comments. In claim (10), Complainant alleged that she was required to complete a "PM Questionnaire" while other carriers were not. According to Agency witnesses, employees who performed poorly in failing to meet expectations concerning the performance of their duties including failing to deliver mail as assigned, were required to complete a questionnaire about their performance that day. The Agency contends that other employees were also required to complete such forms.
Concerning claims (11), (12), and (27), Complainant was disciplined for failure to follow her supervisor's instructions to sort mail and for her use of unauthorized overtime. The Agency contends that Complainant's protected bases were not factors in the Agency's issuance of discipline. In claims (13), and (14), Complainant was put off the clock on those days because her supervisor said she failed to perform her duties and he believed that she was sabotaging the Agency by delivering the mail on her route in a deliberately slow manner. Concerning claims (15), (16), (17), (25), and (28) regarding being made to feel uncomfortable in her case, interrogated for 30 to 40 minutes about her request for overtime, watched while she spoke with a manager, Agency witnesses indicated that Complainant's supervisor was required to question overtime requests for all carriers including Complainant, to determine if there was a sufficient volume of mail to justify the use of overtime.
Complainant contends further that she was treated less favorably than similarly situated employees when her supervisor borrowed Complainant's arrow key and gave it to another employee (18), and when her supervisor assigned another carrier to perform office duties on Complainant's assigned route (20). According to management witnesses Complainant's arrow key was provide to Complainant's colleague so that she could more efficiently deliver mail to the apartments on her route. The Agency further contends that when Complainant reported late to work on May 28, 2011, another letter carrier was assigned to perform the tasks Complainant was not present for that day. Moreover, the Agency asserts that this policy is routinely applied to other carriers who are late for work.
Concerning Complainant's claims that she did not receive pay (31), that the Agency was unable to accommodate her (32), that she would be removed from the Agency (33) and that she lost her step increase and the Agency's automatic TSP contribution (34), the Agency indicates that Complainant failed to report to work for four months. Consequently, Complainant was asked to provide documentation in support of her medical absence in order to participate in the Agency's reasonable accommodation process.1
Upon review, we find that the record does not support a conclusion that the Agency subjected Complainant to a discriminatorily hostile work environment or retaliated against her because of her prior EEO activity or because of her race. The evidence of record concerning the alleged harassing incidents, some of which were little more than generalized assertions, either does not support a finding that the events occurred as alleged by Complainant, or that the incidents were connected in any way to her race or motivated by retaliatory animus. Moreover, the weight of the evidence does not support a finding that the alleged incidents, to the extent they occurred, had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.
We also conclude that Complainant has failed to show that the Agency's proffered legitimate, nondiscriminatory reasons for any of the alleged discriminatory actions were pretextual. Her mere assertions, without more, are not sufficient to show that the Agency's proffered reasons for its actions were false and designed to mask the true discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding Complainant did not establish that she was subjected to unlawful discrimination as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 5, 2013
__________________
Date
1 During the investigation, Complainant asserted that she had been diagnosed with "prolonged depression, anxiety [and] paranoia." However, the record does not indicate that she alleged discrimination based on disability.
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0120131318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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