01A11079
04-26-2002
Susan L. Kaiser, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Susan L. Kaiser v. United States Postal Service (Great Lakes Area)
01A11079
April 26, 2002
.
Susan L. Kaiser,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01A11079
Agency No. 4-J-600-0382-98
Hearing No. 210-A0-6486x
DECISION
INTRODUCTION
This case involves a formal equal employment opportunity (�EEO�) complaint
filed by Susan L. Kaiser (�complainant�) with and against her employer,
the United States Postal Service (Great Lakes Area) (�the agency�).<1> In
her complaint, filed on or around February 8, 1999, complainant contended
that the agency had discriminated against her on the bases of her sex
(female), age (date of birth of November 28, 1995), and in reprisal (for
prior EEO activity) when agency officials refused at the last minute to
allow her to go on a pre-approved work detail. Complainant also alleged
that the postmaster (�Postmaster�) of the facility in which she worked
had sexually harassed her by stating that only �good employees� get to go
on detail (and thus purportedly insinuating that she would have to have
sex with him if she wanted to go on any such details). Complainant was
therefore arguing that the agency had violated Title VII of the Civil
Rights Act of 1964 (�Title VII�), as amended, 42 U.S.C. � 2000e et seq.,
and/or the Age Discrimination in Employment Act of 1967 (�the ADEA�),
as amended, 29 U.S.C. � 621 et seq.
The agency investigated these claims and, on November 9, 2000,
issued a final agency decision (�FAD�) finding that complainant had
not proven discrimination on any prohibited basis or claim raised.<2>
Complainant filed a timely notice challenging this FAD. We accepted
complainant's appeal, and are issuing this decision, pursuant to 29
C.F.R. � 1614.405(a). For the reasons detailed below, we agree with the
agency and find that no unlawful employment discrimination under Title
VII or the ADEA was proven here. We therefore conclude that the FAD in
question should be affirmed.
ANALYSIS AND FINDINGS
We are charged with reviewing this FAD de novo (or �anew�). See 29
C.F.R. � 1614.405(a). This essentially means that in deciding this case,
we are free to accept or reject the agency's factual and legal conclusions
at will. See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15.
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence supports
a finding of unlawful discrimination here. See 29 C.F.R. � 1614.405(a).
Complainant is, at least in part, raising claims of sex-based, age-based,
and reprisal-based disparate treatment. Such claims are properly analyzed
under an evidentiary framework refined over time by the U.S. Supreme
Court. Beginning with McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the high Court issued a series of decisions explaining how
plaintiffs (like complainant) can prove unlawful disparate treatment
where direct evidence of such discrimination is lacking.<3> See id.;
see also Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978);
Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24 (1978);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711
(1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Under this Supreme Court precedent (commonly called the �McDonnell
Douglas� framework, after the case which first introduced it), whether an
employer intentionally discriminated against a complainant is a question
of fact. See, e.g., Aikens, 460 U.S. at 715; cf. Burdine, 450 U.S. at
255 n. 8. The plaintiff must thus persuade the relevant fact finder
(this Commission in this case), that discrimination actually occurred.
Accordingly, an evidentiary �burden of production� is placed initially
on the complainant to put forth a prima facie case of discrimination.
The plaintiff may do so by presenting facts which, 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, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor
Center, 509 U.S. at 510 n. 3. If complainant successfully establishes
such a prima facie case, the burden of production then shifts to the
employer to rebut the complainant's presumptive showing. That is, the
defendant must articulate legitimate, non-discriminatory reasons for
its ostensibly objectionable conduct. See, e.g., McDonnell Douglas, 411
U.S. at 802. If and when the defendant offers such a lawful explanation,
�the presumption raised by the prima facie case is rebutted� and
essentially �drops from the case.� St. Mary's Honor Center, 509 U.S. at
507. Consequently, the complainant must be given �an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons.� Burdine, 450 U.S. at 253.
In other words, the burden of production shifts (one last time) back to
the complainant to show that the explanation offered is but a pretext
for the employer's true, prohibited discriminatory intent. See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
In summary then, in a Title VII or ADEA claim of disparate treatment, the
complainant at all times carries the ultimate burden of persuading the
finder of fact � by a preponderance of (albeit circumstantial) evidence
� that the complainant was a victim of intentional discrimination.
See, e.g., Sweeney, 439 U.S. at 29 (Stevens, J., dissenting); Burdine,
450 U.S. at 256; Aikens, 460 U.S. at 716; St. Mary's Honor Center, 509
U.S. at 507, 511, 518; and Reeves, 530 U.S. at 143. Complainant has
not met this burden here with respect to her sex-based, age-based,
and/or reprisal-based disparate treatment allegations. Even if we
assume for argument's sake that complainant satisfied her initial
obligation to put forth a prima facie case of such disparate treatment,
the agency responded accordingly. That is, it articulated legitimate,
non-discriminatory reasons for refusing to allow complainant to attend
her pre-scheduled detail (namely, that the mail load at the facility had
increased dramatically in the period just before the detail in question
was to begin, and that the Postmaster thus decided that he could not
afford to send complainant away on a special detail and had to keep her at
the facility to help process and deliver this mail). Complainant failed
to prove that this facially legitimate, non-discriminatory explanation was
a pretext for sex, age, or reprisal discrimination. There is no evidence
supporting � much less proving by a preponderance of the evidence � the
notion that complainant was intentionally treated disparately because
she is a woman, over forty, or engaged in prior EEO activity.<4>
Cf. St. Mary's Honor Center, 509 U.S. at 515, 519 (holding that �a
reason cannot be proved to be �a pretext for discrimination' unless it is
shown both that the real reason was false, and that discrimination was
the real reason� for the defendant's employment action, and noting that
�[i]t is not enough . . . to disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination�).
Similarly, there is no evidence substantiating complainant's allegations
of unlawful sexual harassment, either. As this Commission's guidance
points out:
Harassment does not violate federal law unless it involves discriminatory
treatment on the basis of race, color, sex, religion, national origin,
age of 40 or older, disability, or protected activity under the
anti-discrimination statutes. Furthermore, the anti-discrimination
statutes are not a �general civility code.� Thus, federal law does not
prohibit simple teasing, offhand comments, or isolated incidents that
are not �extremely serious.� Rather, the conduct must be �so objectively
offensive as to alter the �conditions' of the victim's employment.� The
conditions of employment are altered only if the harassment culminated
in a tangible employment action or was sufficiently severe or pervasive
to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Enforcement Guidance�), at 4 [internal notes and citations
omitted].
More specifically, �[i]f a supervisor,� such as Postmaster here,<5>
�undertakes or recommends a tangible job action<6> based on a
subordinate's response to unwelcome sexual demands, the employer is
liable and cannot raise� any affirmative defense to such liability.
Enforcement Guidance, at 8. In this case, complainant has alleged
that Postmaster intimated that complainant should have sex with him
if she wanted to be assigned to the detail in question. She appears
to have argued that she refused to have sex with Postmaster and that
her pre-scheduled detail was canceled as a result. If true, these
allegations would establish a case of unlawful harassment and trigger
strict agency liability under Title VII. See id.
However, �[t]his sort of claim is analyzed like any other case in
which a challenged employment action is alleged to be discriminatory.
If the employer produces evidence of a non-discriminatory explanation
for the tangible employment action, a determination must be made whether
that explanation is a pretext designed to hide a discriminatory motive.�
Enforcement Guidance, at 8. As we noted above, complainant has provided
no evidence to convince us that the Postmaster's explanation for denying
her detail was a pretext for any sort of prohibited animus � including
a coverup for any quid pro quo (i.e., sex-for-the-detail) proffer.
Therefore, complainant's sexual harassment claim cannot prevail here.
CONCLUSION
Complainant has not convinced us that it is more likely than not that any
sex-based, age-based, or retaliation-based motivation, specifically, had
anything to do with the agency conduct at issue. Therefore, we cannot
hold the agency liable for either disparate treatment or harassment.
Accordingly, the FAD in question is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1At all relevant times, complainant was a part-time flexible city carrier
at the agency's facility in South Elgin, Illinois.
2Complainant had originally requested a hearing before an administrative
judge (�the AJ�) of the U.S. Equal Employment Opportunity Commission
(�EEOC� or �this Commission�). Complainant's attorney fell ill, however,
and complainant thus asked the AJ to allow her to temporarily withdraw
her request until her attorney could recover. The AJ issued an order
agreeing to hold the request for a hearing in abeyance for 90 additional
days, but notified complainant that the agency would have to issue its
own FAD if the 90-day period elapsed without a renewal of the request
for an AJ hearing. Complainant's attorney did renew the request for a
hearing, but did so more than 90 days after complainant and her attorney
received the AJ's order granting the abeyance. Therefore, the AJ (on
the agency's motion) denied this renewed hearing request and ordered the
agency to issue a FAD. As noted, the agency did so on November 9, 2000.
3Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court has
created an evidentiary �formula [that] does not require direct proof of
discrimination.� International Brotherhood of Teamsters v. United States,
431 U.S. 324, 358 n. 44 (1977); cf. Transworld Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985) (explicitly providing that this circumstantial
evidentiary framework is actually inapplicable where a plaintiff presents
direct evidence of discrimination).
4For instance, in a statement submitted in support of complainant's
appeal, complainant's attorney argues that �the FAD if [sic] literally
riddled with factual error and should be reversed.� Complainant's Appeal
Brief (Dec. 26, 2000), at 2. However, complainant does not provide
concrete examples of any such factual errors that would help her establish
that the agency's legitimate, non-discriminatory explanation for canceling
the detail was mere pretext for sex, age, or reprisal discrimination.
By contrast, the record of investigation contains evidence strongly
supporting Postmaster's testimony that the workload in the facility
escalated substantially right before (and while complainant would have
been on) the subject detail.
5An individual will qualify as an employee's �supervisor� for
these purposes if the individual has authority to undertake or
recommend tangible employment decisions affecting the employee or the
individual has authority to direct the employee's daily work activities.
See Enforcement Guidance, at 5-6. Under this standard, Postmaster was
clearly complainant's �supervisor.�
6We have stated that a �tangible employment action� occurs anytime
there is a �significant change in employment status,� such as when an
employee is hired, fired, promoted, denied a promotion, demoted, given
an undesirable assignment or reassignment, etc. Enforcement Guidance,
at 7-8. In our view, denying complainant a detail that would have
provided her additional experience and training (as she claims it would
have) meets this definition of �tangible employment action.�