0120091874
09-15-2009
Beverly G. Brabham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly G. Brabham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091874
Agency No. 1H-322-0026-08
DECISION
Complainant filed a timely appeal from the agency's final decision,
dated February 23, 2009, 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. 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
During the period at issue, complainant worked as a full-time Parcel
Post Distribution Machine Operator, at the Jacksonville Bulk Mail
Center (BMC) in Jacksonville, Florida. In February 2008, complainant
experienced several confrontations with a co-worker. In one incident, the
co-worker "got in her face" and singled her out for laughing too loudly.
Approximately two weeks later, the same co-worker shoved wire cages
(mail containers) together toward complainant and he blocked her from
getting to her time card. Thereafter, in May 2008, during a service call,
a maintenance mechanic "got in complainant's face" to start the sorter
running again after she had pulled the emergency stop chord. The mechanic
was purportedly ranting and raving for complainant to move and get out,
and continued to "get in her face" even when she tried to leave.
In each instance, complainant brought the matter to management's
attention. However, complainant felt that management did not respond.
Believing that management's inaction, particularly their failure to
enforce the Joint Statement on Behavior and Violence in the Workplace
(hereinafter "Joint Statement") to stop the co-workers confrontations
with her, was discriminatory, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race, color,
sex, and age. The agency framed the claim as follows:
On or about February 3, 16, 17; March 6 and 31, 2008, management did
not respond to her complaints about co-worker confrontation.
At the conclusion of the investigation1, 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), 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.
The agency found that complaint did not establish a prima facie case
of discrimination. Specifically, the agency found that the matters did
not adversely affect a term, condition or privilege of complainant's
employment. The agency acknowledged that the actions may have
caused complainant "embarrassment or discomfort," but determined that
they did not involve violence. The agency stated that complainant
herself admitted that they did not feel threatening to her. Instead the
"confrontations" were merely normal occurrences between co-workers over
what to do and how to behave in the workplace. Moreover, complainant
did not establish a nexus between her protected bases and the agency's
actions. The agency noted that the employees cited by complainant were not
similarly situated. In the case of Comparator M, violence was involved
and consequently the employee was disciplined. 2 Violence was also at
issue in Comparator F's situation, thereby justifying the issuance of
a Notice of Removal for the offending employee. 3 The agency also noted
that, with respect to the basis of age, complainant failed to refer to
any younger employees that received better treatment.
Even assuming that a prima facie case was presented, the agency determined
that management articulated legitimate, non-discriminatory reasons
for its actions. According to complainant's manager, the matters
were investigated. Management spoke with the employee at issue, but
discipline was considered unwarranted. For example, with respect to the
wire cage incident, the Acting Manager of Workplace Improvement looked
into the matter and concluded that it was not violent or threatening
because complainant was unaware until a witness mentioned it to her.
The witnesses herself did not believe that the employee was shoving
the cages at anyone. Management stated that when complainant was asked
whether she felt harassed or threatened, she replied 'no'. The manager
contended that the "Zero Tolerance Policy" was appropriately applied. She
commented that some erroneously believe that if an employee makes a claim
against a co-worker, the policy requires that the co-worker be removed or
discipline. The agency found that, in complainant's case, there was not
evidence of a viable threat. The agency found that while complainant
may have been dissatisfied that the employee was not discipline, she did
not establish that the Joint Statement was discriminatorily enforced.
CONTENTIONS ON APPEAL
Complainant submits no contentions on appeal. The agency reiterates
the reasoning set forth in its decision and requests that the Commission
affirm its finding of no discrimination.
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). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant case, as noted in our prior decision, complainant is
not alleging harassment but rather that she was subjected to disparate
treatment when management failed to respond to her complaints of
co-worker harassment. The Commission finds that complainant's claim
is not supported by the record. The comparator employees cited by
complainant, who obtained assistance from management and the enforcement
of the Zero Tolerance policy, were involved with more severe incidents.
By complainant's own description, in one instance the employee had an
object thrown at her. In another, the employee was hit by a forklift.
The third event involved pushing. Consequently, we do not find that the
comparators referenced by complainant were similarly situated individuals.
Further, we do not find that complainant has established any nexus
between her protected bases and the agency's alleged failure to respond
to her complaints.
The agency has provided a legitimate, non-discriminatory reason for its
actions. Complainant has not met her burden in proving that the agency's
reasons were pretext to mask unlawful discriminatory animus. Therefore,
we find that the agency's decision finding no discrimination was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby AFFIRM the
agency's 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
September 15, 2009
__________________
Date
1 Initially the complaint was dismissed by the agency, on May 12,
2008, for failure to state a claim. On appeal, the Commission reversed
the agency's dismissal and remanded the case for further processing.
Brabham v. United States Postal Service, EEOC Appeal No. 0120082782
(September 12, 2008).
2 According to the agency, the employee threw a tool that did not hit
Comparator M, but then he forcefully opened a bag of parts, wherein one
flew out and struck Comparator M.
3 Following a confrontation with an employee, Comparator F was struck
twice with a forklift driven by the employee.
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0120091874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091874