Amelia Washington, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 25, 2009
0120070557 (E.E.O.C. Mar. 25, 2009)

0120070557

03-25-2009

Amelia Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Amelia Washington,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070557

Agency No. 4H300002606

DECISION

On November 3, 2006, complainant filed an appeal from the agency's October

11, 2006 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., 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final decision.

BACKGROUND

At all times relevant to this complaint, complainant was a Customer

Service Supervisor, EAS-17, located at the agency's Howell Mill

Post Office in Atlanta, Georgia. Prior to August 2005, complainant

was acting Manager of Customer Service at the Howell Mill Station.

Complainant applied for permanent placement in the Manager of Customer

Service position, but the position was instead awarded to S1 (female,

African American). When S1 began in the position, complainant was

moved back to her position as a Customer Service Supervisor, and S1 was

complainant's supervisor.

The record discloses that soon after S1 assumed her new position,

animosity began between complainant and S1. S1 felt that complainant

was angry because she was not chosen for the Manager position, and was

intentionally trying to sabotage S1's employment by making decisions

without S1's consent and going directly against policies that S1 put

in place upon her arrival. S1 would often confront complainant during

staff meetings in front of other supervisors, which often resulted in

verbal altercations. Complainant stated that S1 acted like a "psychotic

fool" during staff meetings and would shout at her, berate her, and

threaten her.

Complainant alleges that S1 made many discriminatory comments to her

such as, "I use to beat little short bitches like you every day in high

school, and it ain't no different now. I'll fight a nigger in a minute,

so don't cross my damn path"1; "I don't give a fuck about none of you,

this is your damn job, and we can take it to a personal level if you want

to"; and "I will bust you in your damn head." S1 denies making these

comments and using offensive language, including the racial epithet.

Further, there were no witnesses identified who could corroborate that

these comments or any offensive language was ever uttered by S1.

Complainant told her Area Manager that she needed to be transferred to

another facility because there were issues with management, and she felt

that her presence in the station was the problem. Complainant did not

tell management that she wanted to be moved because of discrimination or

harassment by S1. Ultimately, complainant was moved to another facility

on November 10, 2005.

On February 3, 2006, complainant filed a formal complaint alleging

harassment and discrimination on the bases of race (African American),

sex (female), age (DOB: 08/27/1961), and physical disability (deformed

left leg) when:

1. Between August 2005, and November 10, 2005, her supervisor shouted

at her, yelled orders at her, belittled her, and threatened her; and

2. Between August 2005, and November 10, 2005, her supervisor made

discriminatory comments to her such as:

a. "I use to beat little short bitches like you every day in high school,

and it ain't no different now. I'll fight a nigger in a minute, so

don't cross my damn path";

b. "I don't give a fuck about none of you, this is your damn job, and

we can take it to a personal level if you want to"; and

c. "I will bust you in your damn head."

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). 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 she was

subjected to discrimination as alleged. Complainant now appeals to the

Commission.

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 EEOC Management

Directive 110, 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").

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). She must

generally establish a prima facie case by demonstrating that she was

subjected to an adverse employment action under circumstances that

would support an inference of discrimination. See St Mary's Honor

Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas,

411 U.S. at 802. In order to establish a prima facie case under the

Rehabilitation Act, complainant must demonstrate that: (1) she is an

"individual with a disability;" (2) she is "qualified" for the position

held or desired; (3) she was subjected to an adverse employment action;

and (4) the circumstances surrounding the adverse action give rise to an

inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916

(7th Cir. 2001).

In order to establish a prima facie case under Title VII and the

ADEA, complainant must show the following: (1) she was a member of

the protected class; (2) an adverse action was taken against her; (3)

a causal relationship existed between her membership in the protected

class and the adverse action; and (4) other employees outside of her

protected class were treated differently. McDonnell Douglas, 411 U.S. at

802; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000) (applying McDonnell Douglas analysis to ADEA claim).

To establish a prima facie case of harassment, complainant must show

that: (1) she is a member of a statutorily protected class; (2) she

was subjected to unwelcome verbal or physical conduct related to her

membership in that class; (3) the harassment complained of was based

on her membership in that class; (4) the harassment had the purpose

or effect of unreasonably interfering with her work performance and/or

creating an intimidating, hostile, or offensive work environment; and

(5) there is a basis for imputing liability to the employer. See Roberts

v. Department of Transportation, EEOC Appeal No. 01970727 (September 15,

2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).

Once complainant establishes a prima facie case of discrimination,

the second step in the analysis shifts the burden on the agency to

articulate a legitimate, nondiscriminatory reason for the challenged

actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411

U.S. at 802. Finally, it is complainant's burden to demonstrate by

a preponderance of the evidence that the agency's action was based on

prohibited considerations of discrimination, that is, its articulated

reason for its action was not its true reason but a sham or pretext for

discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;

McDonnell Douglas, 411 U.S. at 804.

Complainant's disparate treatment and hostile work environment claims fail

because she has not established a prima facie claim of discrimination

or harassment on any basis. As mentioned above, she has the initial

burden of presenting facts that, if unexplained, reasonably give rise

to an inference of discrimination. In other words, she must show

that a prohibited consideration was a factor in an adverse employment

action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Here,

the record does not support a finding that the actions were motivated by

discriminatory animus. Instead, the record establishes that there was

more likely than not a personality conflict between complainant and S1.

Further, the record supports the agency's assertion that the animosity

between complainant and S1 was motivated by complainant's anger that she

was not chosen for the Manager position, and not because of discriminatory

animus by S1. Besides complainant's bare allegations, the record does

not support her claim that S1 made derogatory and discriminatory comments

towards complainant, including using racial epithets. Even assuming

that S1 did berate, belittle, and shout at complainant, there is no

evidence in the record that would establish that those actions were

based on discriminatory animus towards complainant's protected classes.

Therefore, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

March 25, 2009

Date

1 We note that complainant asserts in the record that this particular

comment was made because S1 had discriminatory animus on account of

complainant's height. However, we will consider this an allegation of

racial discrimination because of the alleged use of a racial epithet.

??

??

??

??

2

0120070557

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120070557

7

0120070557