Carol J. Hilton Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01985820 (E.E.O.C. Mar. 24, 2000)

01985820

03-24-2000

Carol J. Hilton Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carol J. Hilton v. United States Postal Service

01985820

March 24, 2000

Carol J. Hilton )

Complainant, )

) Appeal No. 01985820

v. ) Agency No. 1H321006697

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

INTRODUCTION

Carol J. Hilton (complainant) timely filed an appeal on July 20, 1998,

with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD), dated July 1, 1998, concerning a

claim of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, 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.<1> The Commission hereby accepts the appeal in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the bases of color (white), age (44), sex

(female), and retaliation (prior EEO activity) when she was denied a shop

steward at a meeting with her manager, her supervisor made comments about

her light duty and an overabundance of supplies, and she was charged AWOL.

BACKGROUND

Complainant was employed by the agency as a Laborer Custodial, PS-03.

She filed a formal complaint on June 5, 1997, claiming discrimination

on the bases of color (white), age (44), sex (female), and retaliation

(prior EEO activity) when: 1) on January 23, 1997, she was denied a shop

steward, by her supervisor, at a meeting with management; 2) on February

28, 1997, she was questioned and harassed about a surplus of supplies at

her station; 3) on March 6, 1997, derogatory comments were made regarding

her light duty status; and 4) on March 11, 1997, she was charged AWOL.

The agency's FAD found no discrimination. This 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, 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). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. 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. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993). Under the ADEA, the appellant

must establish that age was a determining factor in the agency's action

against her. Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993).

A prima facie case of reprisal is established by showing that: (1) the

complainant engaged in protected activity; (2) the employer was aware of

the protected activity; (3) the complainant was subsequently subjected

to adverse treatment; and (4) the adverse action followed the protected

activity within such a period of time that a retaliatory motivation may

be inferred. See Manoharan v. Columbia University College of Physicians

and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808

F. 2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,

790 (D.C. Cir. 1984).

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. 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).

Claim 1

In response to complainant's claim that she was denied a shop steward,

by her supervisor, S-1, during a meeting with management, we find that

the agency has articulated a legitimate, nondiscriminatory reason for

its action, namely that as an afterthought to the meeting, complainant

requested that S-1 obtain the Union's input prior to making assignments

and clarifying duties. S-1 stated that he declined to delay the meeting

for another day pending the availability of a union representative.

Since the agency articulated such a reason, the burden returns to the

complainant to demonstrate that the agency's articulated reason was a

pretext for discrimination. We find that the complainant has failed

to do so because she has not provided any evidence to disprove S-1's

claim that he merely did not want to delay the meeting another day.

In addition, complainant has not provided, nor does the record contain,

any other evidence of pretext. Therefore, the agency's determination

that complainant failed to establish that she was discriminated against,

with respect to this claim, was correct.

Claim 2

In response to complainant's claim that she was questioned and harassed

about surplus supplies by S-1, we find that the agency has provided

a legitimate, nondiscriminatory reason for its action, namely that

there was a surplus of supplies. S-1 testified that during a visit to

complainant's station, he noted that an abundance of supplies were stored

there. He informed complainant and a male coworker that subsequent

supply orders should be forwarded to him for review and approval.

Since the agency articulated such a reason, the burden returns to the

complainant to demonstrate that the agency's articulated reason was a

pretext for discrimination. We find that the complainant has failed to

do so because she has not provided any evidence to show that S-1 was

not within his authority to ask about and approve supply orders, nor

has complainant linked S-1's actions with any basis for discrimination.

In addition complainant has not provided, nor does the record contain,

any other evidence of pretext. Therefore, the agency's determination

that complainant failed to establish that she was discriminated against,

with respect to this claim, was correct.

Claim 3

The analysis of claim 3 can be found in the "Harassment" section at the

end of this decision.

Claim 4

In response to complainant's claim that she was charged as AWOL, we find

that the agency has articulated legitimate, nondiscriminatory reasons

for its action, namely that complainant was late for work, that she

did not notify S-1 that she was going to be late, that complainant's

lateness disrupted the custodial routes for that day, and that S-1 acted

in accordance with agency policy when he charged complainant as AWOL.

Since the agency articulated such reasons, the burden returns to the

complainant to demonstrate that the agency's articulated reason was a

pretext for discrimination. We find that the complainant has failed to do

so because she has not provided any evidence to disprove S-1's assertion

that he was acting within agency policy when he charged her as AWOL.

Complainant explained that she was late to work because she had overslept,

that she notified another supervisor, S-2, that she would be late, and

that it was S-2 who told her she would be charged LWOP, instead of AWOL.

Complainant did not, however, notify her own supervisor that she would be

late, and the record contains a copy of agency policy showing that S-1 was

within his rights to charge complainant with AWOL in such a situation.

In addition, complainant has not provided, nor does the record contain,

any other evidence of pretext. Therefore, the agency's determination

that complainant failed to establish that she was discriminated against,

with respect to this claim, was correct.

Harassment

The Commission also finds that complainant has not established that she

was harassed by S-1, as summarized collectively in all four of her claims.

It is well-settled that harassment based on an individual's color, age,

sex, and reprisal is actionable. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57 (1986). In order to establish a claim of harassment under

those bases, the complainant must show that: (1) she belongs to the

statutorily protected classes, and she engaged in prior EEO activity;

(2) she was subjected to unwelcome conduct related to her membership in

those classes, and her prior EEO activity; (3) the harassment complained

of was based on color, age, sex, and reprisal; (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

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 on Harris

v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

If the complainant satisfies the five elements, then the agency is

subject to vicarious liability insofar as the harassment would have

been "created by a supervisor with immediate ... authority over the

[complainant]." Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999),

at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742,

118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524

U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<2>

Complainant has not established a prima facie case of harassment.

Under prong (1) of the test above, she has demonstrated membership in the

protected classes she identifies, and has shown that she filed a prior

EEO complaint. She has not, however, demonstrated, under prongs (2)

and (3) of the test above, that the conduct by S-1, discussed in this

complaint, was related to her color, age, sex, or prior EEO activity.

In addition, under prong (4), complainant has not demonstrated that the

incidents complained of were severe or pervasive enough to interfere

with her work performance or create a hostile work environment.

CONCLUSION

The decision of the agency is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

March 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 When the harassment does not result in a tangible employment action,

the agency can raise an affirmative defense to liability which it

can meet by demonstrating: (a) that it exercised reasonable care to

prevent and correct promptly any harassing behavior; and (b) that

the employee unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, at 12. This defense is not available when the

harassment results in a tangible employment action (e.g., a discharge,

demotion, or reassignment) being taken against the employee. Id. at 7.