0120121714
08-22-2012
Wanda G. Benson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Wanda G. Benson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121714
Hearing No. 460-2011-00150X
Agency No. 4G770008311
DECISION
On February 27, 2012, Complainant filed an appeal from the Agency's January 31, 2012, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Customer Services Manager at the Agency's Irvington Station facility in Houston, Texas.
On March 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), physical disability (unspecified) mental disability (depression), age (52), and reprisal for prior protected EEO activity when she was continuously harassed, bullied, and sabotaged in the operation of her unit when:
1. On August 3, 2010, she was forced to make operational changes to her unit when she was instructed to send a Transitional Employee to the North Shepherd Station;
2. On August 16 and 21, 2010, she was instructed that she could not use [named individual] as an acting supervisor (204B);
3. She was not paid for hours worked on August 7, 9 and 28, 2010;
4. She was forced to work against her medical restrictions with the threat of termination when on August 7 and 28, 2010, she was forced to work because her Area Manager changed her supervisor schedule and had an inexperienced 204B scheduled to run the unit;
5. On November 26, 2010, she received a Letter of Decision regarding a Notice of Proposed Letter of Warning I Lieu of a Seven Day Time Off Suspension dated September 25, 2010;
6. On November 25, 2010, she was instructed to call every night to certify unit clearance;
7. On December 18 and 28, 2010, she was given instructions to be at her office at the end of every day if carriers were projected on the streets after 1800 hours;
8. She was forced to go to the Employee Assistance Program on December 16, 2010;
9. She was not compensated for holiday pay for December 31, 2010;
10. On November 19, 2010, she was denied assistance to complete delivery of carrier routes at the Irvington Station on November 20, 2010;
11. Her HIPPA rights were violated when her medical information was circulated throughout the North Shepherd Station; and
12. On December 17, 2010, she was subjected to the Area manager's fourteen year old daughter in order to clear her unit.
At the conclusion of the investigation, 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. When the Complainant did not object, the AJ assigned to the case granted the Agency's November 14, 2011, motion for a decision without a hearing and found in favor of the Agency by summary judgment on January 25, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The record in this matter indicates that pursuant to an instruction from the Agency's Acting Postmaster that all facilities were to send their Transitional Employee Carriers (TE) to the Agency's North Shepherd Station due to the increased work demands of the station, on August 3, 2010, Complainant's manager, instructed Complainant to send one of the TE carriers to the North Shepherd Station for assistance the following day. Thereafter, Complainant's TE was sent back to her duty station even though other TE carriers were not. The record discloses that the Irvington Station at which Complainant worked was staffed with one manager and one supervisor in accordance with Agency policy. Complainant was advised on August 16 and August 21, 2010, that having a temporary or replacement supervisor working at her station on a regular basis would violate Agency policy with respect to staffing allowances. Therefore, Complainant was only permitted to use a 204B acting supervisor when the promoted supervisor was off. According to the Agency, Complainant failed to adhere to Agency policy with respect to the assignment of acting supervisors. Consequently, Complainant's supervisor advised Complainant to notify her as far in advance as possible when one of her supervisors was off or would be away from the office so that a replacement could be found. Concerning claim 3, Complainant alleges that she was not paid for hours worked on August 7, 9 and 28 2010. According to the Agency, as a non-bargaining unit employee, Complainant is not entitled to overtime pay or any additional compensation for working more than 40 hours in a week. The record further indicates that Complainant was paid for 40 hours of week for the time period covering August 7, 9 and 28, 2010.
In claim 4, Complainant alleges that she was forced to work beyond her medical restrictions with the threat of termination if she did not on August 7 and 28 2010. The record indicates that on August 7, 2010, Complainant called in to the Irvington Station at 6:00 a.m. and then reported to work to manage the operation when she discovered that no management official was in the unit. On August 28, 2010, when Complainant learned that a 204B trainee was scheduled to run the daily operations of the station, Complainant reported to work because she believed that the trainee did not have the knowledge or training required to run the carrier operation at the Irvington Station. There is no evidence of record that the Agency forced to Complainant to work outside of her medical restrictions on either August 7 or 28, 2010. Complainant alleges in claim 5 that she was discriminatorily issued a Letter of Decision regarding a Notice of Proposed Letter of Warning in Lieu of 7-Day Time-Off Suspension dated September 25, 2010. The record discloses that the Proposed Letter of Warning was issued for Complainant's failure to follow instructions in the performance of her duties. In November 2010, following a discussion of the events which led to the Proposed Letter of Warning, Complainant's supervisor decided to reduce the letter of warning to an official discussion. A decision letter dated November 12, 2010 was issued in accordance with Agency procedure.
On November 25, 2010, Complainant as well as every other station manager in Area 1, was instructed to call Complainant's supervisor each night to certify that their office was clear. According to the Agency, the action was taken because too many Area managers were unaware of circumstances happening in their units regarding non-compliance and untimely reporting after hours. The record further reveals that ultimately this practice of calling in was discontinued.
In claim 7, Complainant alleges that she was discriminated against when she was instructed to be at her office at the end of every day if carriers were to be out on the streets delivering mail after 6:00 p.m. The record discloses that in December 2010, the Agency's District Manager instructed all managers in the Houston District to restrict the use of overtime at their facilities. In order to accomplish that, the District Manager ordered all units to have the manager of each station be present at the unit to close and ensure that the carries got back from delivering their routes on time. Following an investigative interview with Complainant concerning her behavior at work, Complainant's supervisor referred Complainant to the EAP program. According to the Agency, Complainant's attendance at a scheduled EAP meeting was voluntary on Complainant's part. The record demonstrates that Complainant attended the EAP counseling session on December 16, 2010. In claim 9, Complainant alleges that she was not compensated for holiday pay for work on December 31, 2010. The record however indicates that Complainant in fact, received holiday leave pay for December 31, 2010.
Due to a shortage of manpower in November 2010, all Area 1 managers, including Complainant were denied assistance to complete delivery of carrier routes. The record indicates that during this time, all TE carriers from Area 1 stations were sent to the North Sheppard Station for assistance. Concerning claim 11, other than Complainant's bare assertion, there is no evidence of record that Complainant's medical documentation was located or circulated at the North Sheppard Station. Complainant alleges in claim 12, that she was required to report to the Area Manager's 14 year old daughter on December 14, 2010. The record indicates that in accordance with Agency policy, postal facilities are required to certify that their buildings are clear at the end of each day. On two occasions, the Agency's Area Manager called all Area 1 offices to inquire about the carriers returning late to the station.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and Complainant has not identified any disputes of material fact.
Here, we agree with the AJ's ultimate finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case discrimination on any alleged, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
To the extent that Complainant alleges that she was subjected to discriminatory harassment, the Commission notes that 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. U.S. Postal Serv., 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 Sys., Inc. at 3, 9 (March 8, 1994). In determining that 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 Sys., 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 environment harassment, Complainant must show that: (1) she belongs to a 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 her 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.
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. The Commission concludes that Complainant did not prove that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that she also failed to prove that the Agency's actions were unlawfully motivated by her protected classes. Even assuming that the alleged incidents would be sufficiently severe or pervasive to constitute a hostile work environment, there is no evidence that the Agency was motivated by discriminatory animus. Accordingly, Complainant has not shown that she was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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 22, 2012
__________________
Date
2
0120121714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121714