0120131899
08-06-2013
Veleria S. Wright, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Veleria S. Wright,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131899
Agency No. 1H-302-0023-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 28, 2013 final decision concerning an 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Networks Specialist, EAS-16, at the Agency's North Metro Processing and Distribution Center (North Metro P&DC) in Duluth, Georgia.1
On April 19, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment by the Manager TANS and In-Plant Support Manager on the bases of sex (female) and age (over 40) when:
beginning in June 2009 and continuing, including but not limited to: being yelled at; issued a negative Fiscal Year 2009 (FY 09) evaluation; forced to work Veteran's Day; having her supervisor refer to a female employee as a "bitch;" not being sent proper work schedules; on December 1, 2009, being accused of improper leave practices; on December 1, 2009, moving equipment under her control without advising her; on December 2, 2009, accused of mistakes she did not make; in February 2010, denying her a scheduled salary increase; on March 7, 2010, failing to provide her copies of documentation used to support her NPA rating; on March 15, 2010, directing her to leave the building without cause; on March 22, 2010, placing her work in boxes; on March 23, 2010, refusing to accept her documentation and directing her to leave the premises; and from March 24, 2010 to April 11, 2010, refusing her work in her position.
After the investigation of the complaint, 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). Complainant initially requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision on February 28, 2013, pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination.
The Agency found that Complainant did not establish a prima facie case of sex and age discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of sex and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and age. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The Manager TANS (Manager) stated that in regard to Complainant's allegation that he yelled at her in July 2009, October 2009 and December 2009, he does not recall yelling at Complainant but acknowledged he always speaks in a loud tone. Specifically, the Manager stated "I always speak in a loud tone and [Complainant] is required to follow the instructions of her immediate supervisor or any other manager. When she is instructed to follow my instructions, she is required to do so." For instance, the Manager stated that on December 2, 2009, that he spoke to Complainant "in a loud tone. Yes, she was directed by me that she was to follow my instructions and not complain to the contractors that she doesn't know why they need to leave and because I said so. "
The Acting Motor Vehicle Service Manager Transportation Operations (Acting Manager) that at the time he entered the Manager's office on December 2, 2009, the Manager "was not yelling. He spoke of the information he received from the Southeast Area concerning the Highway Contractors vehicles being removed from the North Metro P&DC facility. [Complainant] and I were instructed to clean up whatever mess that was made."
With respect to Complainant's allegation that she received a negative FY 2009 evaluation which showed non-flattering comments regarding her performance, the Manager denied it.
With respect to Complainant's allegation that she was the only Networks Specialist forced to work Veteran's Day holiday because the Manager changed the schedule, the Manager stated that Complainant was scheduled to work on the holiday "since she had complained that she was behind and could not complete her assigned duties in a timely manner, as an EAS employee she was placed on the schedule to afford her the time to 'catch up' with her assignments that she claimed she was behind. She was not the only EAS or 204b who was scheduled to report to work on a holiday. I even came to work that day."
With respect to Complainant's allegation that the Manager referred to a female employee as "bitch," the Manager denied ever referring to another employee as a "bitch." The Manager further stated that he does not know what Complainant meant in regard to not being sent proper work schedules. The Manager stated that all leave requests for the period of December 2009 had to be authorized and approved through him. The Manager stated that because Complainant "chose to circumvent the process by not contacting me and when I was notified by [Acting Manager] that she wanted leave, I denied it."
The Acting Manager stated that Complainant's leave request was denied "due to there is no leave approved for the month of December due to increased postal operations."
With respect to Complainant's allegation that on December 2, 2009, she was accused of mistakes she did not make, the Manager stated "what mistakes?" The Manager stated in regard to Complainant's allegation that in February 2010, she was denied a salary increase, he notified Complainant in November 2009 regarding concerns that he had with her and two other employees' NPAs. Specifically, the Manager stated he told Complainant that "I had concerns in addition to her two other EAS employees with regard to her NPA. I spoke with [NAPS local president and representative] that I had concerns with their NPA. I spoke to all three employees that they need to contact [NAPS local president and representative]. [Complainant] failed to do so."
The Manager stated that while Complainant stated that on March 7, 2010, she was not provided copies of documentation used to support her NPA rating, Complainant "has access to PES [Performance Evaluation System] and she was a responsibility to access the system and pull any required reports."
With respect to Complainant's claim that she was directed to leave the facility without cause when she went to her office off the clock to pull the information she needed for her eRecourse, the Manager stated "I have an obligation to insure the safety and well being of all employees under my charge. If [Complainant] claimed that she was sick and then had a medical issue on the work room floor, I will be held responsible as to why she was in the building while on Sick Leave. She could have contacted HR or me to find out what was her alternatives with filing eRecourse for her PES."
The Manager stated that in regard to Complainant's allegation that on March 22, 2010, she returned to work and found that her work was placed in boxes, her workload was given to a named employee at that time. The Manager averred that he does not recall how many emails and voicemails Complainant had, and "she had the opportunity to place a 'out of the office' message for her voicemail and email."
The Acting Manager stated at that time Complainant "did have letter trays of Highway contract documentation on her desk. I did not see who put them there. I do not have access to her e-mails or voice mail messages."
With respect to Complainant's allegation that on March 23, 2010, her return to work documentation was not accepted and she was directed to leave the premises, the Manager stated Complainant was escorted off the premises because there was no medical documentation that cleared her to return to work and found her fit for duty. The Manager stated that "I hold my EAS employees to the same standards as I do the craft. And on this day, she failed to comply with the [Acting Manager's] instructions to leave the premises and I informed [Acting Manager] to contact [Tour 1 Manager Distribution Operations] to look at the documentation and let him make the decision, and he came to the same conclusion and escorted her off the premises."
Further, the Manager stated that from March 24, 2010 through April 11, 2010, Complainant was not permitted to return to work "based on her submitted documentation as well as having two [named Managers, Distribution Operations] involved with this issue, she provided no documentation that could be substantiated and she chose to stay off from work."
Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant states that the instant final decision "errs in focusing upon the individual incidents in question and then rejecting each as not sufficiently egregious to constitute actionable harassment." Complainant further argues that the Manager's conduct "was successful in driving her from the workplace and prematurely ending her career with the Postal Service. It was so severe she has become eligible for workers compensation benefits."
Further, Complainant states that two named female employees were subjected to harassment by the Manager and that she "should prevail on this complaint because taken as a whole the record evidence does establish that [Manager] treats women significantly worse than he treats male employees."
The instant appeal followed.
ANALYSIS AND FINDINGS
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, he must first establish a prima facie 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of 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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her sex and age.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 6, 2013
__________________
Date
1 The record reflects that in April 2010, Complainant left Agency employment.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131899
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131899
8
0120131899