01a60941_r
05-25-2006
Carolyn B. Sanders, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carolyn B. Sanders v. United States Postal Service
01A60941
May 25, 2006
.
Carolyn B. Sanders,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60941
Agency No. 4H-390-0029-04
DECISION
Complainant filed an appeal with this Commission from the October 7,
2005 agency decision finding no discrimination.
Complainant, a rural carrier associate, alleged that the agency
discriminated against her on the bases of race (Black) and sex (female)
when she was issued a 7-day suspension, dated December 18, 2003, for
unavailability for duty/unsatisfactory performance.<1> Complainant also
alleged during the investigation that she was sexually harassed.
At the conclusion of the investigation, complainant received a copy of
the investigative report and she requested a decision from the agency.
In its decision, the agency concluded that complainant failed to establish
a prima facie case of race and sex discrimination because she failed to
show that she was treated differently from similarly situated persons
who were not members of her protected groups. The agency noted that
Person A, a male, who was identified by complainant as having received
favorable treatment, was a
regular rural carrier while complainant was a rural carrier
associate. The agency further noted that a rural carrier
associate was a replacement position, was hired primarily
to be leave and off-day replacements for regular carriers,
and was expected to report for duty anytime it was deemed
necessary by management or when the regular carrier was
on an off day or on leave. The agency also concluded in
its decision that complainant failed to establish a prima
facie case of sexual harassment.
The agency further concluded that even if complainant established a
prima facie case of discrimination based on race and sex, the agency
articulated legitimate, nondiscriminatory reasons for its actions and
complainant failed to show that the agency's reasons for its actions
were mere pretext to hide unlawful discrimination. The agency stated
that complainant was disciplined because she was unavailable to carry the
route she was scheduled to carry and that when she reported to work, she
was four hours late, did not complete her route, and returned undelivered
mail to the office.
On appeal, complainant asserts that the Postmaster made two threatening
telephone calls to her home while she was off duty and ordered her to
report to work although she was properly excused from work; that he
took away her right to use emergency leave; that he allowed a White,
male co-worker to call and threaten her; that he told her that postal
policy required her to rent a vehicle which was false; and that he had
never disciplined another employee for a mechanical breakdown. She also
asserts that the Postmaster knew that there was not enough time for her
to complete her route after reporting to work and he should have taken
steps to have the mail delivered. She asserts that her vehicle did not
break down until the day she requested emergency leave.
Generally, complainant can establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or in
reprisal is unlawful. A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment that
results in a tangible employment action; and (2) harassment that creates
a hostile work environment.
An objectively hostile or abusive work environment exists when a
reasonable person would find it hostile or abusive and the complainant
subjectively perceives it as such. To determine whether a work
environment is objectively hostile or abusive, the trier of fact
must consider all of the circumstances, including the following: 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. Accordingly, harassment is actionable only
if the harassment to which the complainant has been subjected to was
sufficiently severe or pervasive to alter the conditions of complainant's
employment.
In order to prevail on a claim of sex-based harassment, complainant
must show that: (a) complainant was subjected to unwelcome conduct;
(b) the unwelcome conduct was related to complainant's gender; (c)
the harassment had the purpose or effect of unreasonably interfering
with complainant's work performance and/or creating an intimidating,
hostile, or offensive work environment; and (d) some basis exists to
impute liability to the employer (i.e., supervisory employees knew or
should have known of the conduct but failed to take corrective action).
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings
Bank v. Vinson, 477 U.S. 57, 64-65 (1986); 29 C.F.R. 1604.11(a)(d)(1995).
To establish a prima facie case of race or sex discrimination, a
complainant must show the following: (1) complainant was a member of the
protected class; (2) an adverse action was taken against complainant;
(3) a causal relationship existed between complainant's membership in
the protected class and the adverse action; and (4) other employees
outside of complainant's protected class were treated differently.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. 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 or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima
facie inquiry may be dispensed with when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States 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).
In her affidavit, complainant stated that she was issued discipline
although she called the attendance center as required. She also stated
that management allowed members not of her protected classes to do what
she had done without consequence and that postal records over the past
10 years proved that other employees were not disciplined for similar
incidents. She further stated that all other employees knew that the
issuance of discipline for a vehicle break down had not happened to
anyone before in the Canton Post Office. Complainant stated also that
she did not receive a pre-disciplinary discussion prior to being issued
the suspension and that she had never received any discipline before.
She stated that Person A, a White male, was treated differently than
she was.
Complainant also stated in her affidavit that the Postmaster continually
asked her to go to his office after all employees were gone and that he
called her at home, asked if he could come to her house, pick her up,
and bring her to work. She stated that she did not discuss her concerns
about the Postmaster with her co-workers because she was too embarrassed
and she was afraid she would be disciplined. Asked in her affidavit
whether she had informed the Postmaster that his conduct was offensive,
complainant responded affirmatively and stated that she had told the
Postmaster that she preferred that someone accompany her when he called
her into his office. Complainant also stated that the Postmaster has
since returned to his original post office.
The Postmaster's affidavit is contained in the record. The Postmaster
stated therein that complainant was the substitute carrier assigned to
Person A's route and that she was required to work when Person A took
leave. He further stated that Person A had requested leave in advance
for December 1, 2003, and the leave was approved. The Postmaster stated
that complainant had car problems on the Saturday prior to December 1,
2003, and that she was required to furnish a vehicle. The Postmaster also
stated in his affidavit that there was a pre-disciplinary investigation.
The Postmaster stated that complainant was unavailable to carry the route
for which she was scheduled; that when she reported to work, she was four
hours late; that she did not complete her route; and that she returned to
the post office with undelivered mail. Asked in his affidavit whether
complainant had prior discipline such that the seven-day suspension was
progressive in nature, the Postmaster stated that in his 26 years, he had
not known anyone to �pull such a stunt.� He stated that he became aware
of complainant's allegations of sexual harassment during the processing
of her EEO complaint and that she raised the allegations to cover her
poor performance and unacceptable behavior.
The record contains the December 18, 2003 notice of a seven-day
paper suspension in which the Postmaster charged complainant with
unavailability for duty/unsatisfactory performance. The Postmaster stated
in complainant's suspension notice that on December 1, 2003, complainant
telephoned and reported her inability to report for duty due to mechanical
problems with her vehicle. He also stated that complainant was aware
of mechanical problems with her vehicle prior to December 1, 2003.
The Postmaster stated that he contacted the regular rural carrier who
reported for duty and cased the route until the regular rural carrier had
to leave at approximately 10:30 a.m. He stated further in the suspension
notice that he contacted complainant again and instructed her to rent
a car if necessary in order to perform her assigned duties and deliver
the mail.
The Postmaster also stated in complainant's suspension notice that
complainant reported for duty at approximately 12:00 p.m., finished
casing the route, and delivered a portion of the route but failed to
complete delivery of all the available mail for that day. The Postmaster
stated that when complainant was later questioned concerning the incident,
complainant stated that she thought it was unreasonable of the Postmaster
to require complainant to rent a car to deliver the route. He further
stated that complainant refused to accept any responsibility for her
actions and did not express any regret or remorse for her actions and
that her lack of a valid explanation and/or remorse for her actions
was unacceptable. Complainant's suspension notice reflects that rural
carrier associates were hired primarily to be leave and/or off-day
replacement for the regular carrier assigned to the route and that
rural carrier associates were expected to report for duty anytime it was
deemed necessary by management or when the regular carrier was either
on an off-day or on leave. The Postmaster also stated in complainant's
suspension notice that complainant was aware of the commitments that
she made when she was hired as a rural carrier associate, that her
unavailability for duty affected service to customers, and that her
failure to satisfactorily complete her assigned delivery duties on
December 1, 2003, caused the delay of approximately 220 pieces of mail
to customers.
The record reflects that on January 24, 2004, Person B, a female
rural letter carrier, was issued a notice of seven-day suspension for
unavailability for duty/unsatisfactory performance on January 22, 2004.
The suspension was issued by Supervisor A, with the Postmaster concurring.
The suspension notice reflects that Person B had reported mechanical
difficulties with her delivery vehicle on December 30, and December 31,
2003, and on January 2, 2004. The suspension notice also reflects that
Supervisor A directed Person B to rent a vehicle if necessary in order
to deliver the mail and that Person B refused. There are no other
suspension notices in the record.
The record contains the November 7, 2003 request of Person A for leave
from 9:00 a.m. to 6:30 p.m. on December 1, 2003. The leave request
reflects that it was approved by Supervisor A on November 7, 2003.
The record does not indicate that complainant, who appears to have worked
as a rural carrier associate for at least nine years, had ever requested
emergency leave prior to December 1, 2003, because of a breakdown of her
delivery vehicle or vehicle problems or that she was previously issued
any discipline.
The Commission notes that, because this is an appeal from an agency
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.
See 29 C.F.R. � 1614.405(a).
As an initial matter, the Commission finds, contrary to complainant's
assertions on appeal, that the investigation of the complaint was
adequate. The report of investigation contains sufficient information
upon which to determine whether or not the suspension was the result of
an unlawful discriminatory motive. See 29 C.F.R. � 1614.108.
The Commission finds that complainant failed to establish a prima facie
case of sex-based harassment. Accepting complainant's statements as
true and considering all of the evidence in the light most favorable to
complainant, the Commission cannot find that the conduct which allegedly
occurred or the conditions at work were so severe and pervasive so as
to have altered the conditions of complainant's employment and created a
hostile work environment. Although complainant was issued discipline by a
supervisor which constitutes a tangible employment action, complainant has
failed to show that a causal relationship existed between the discipline
that she was issued by a supervisor, the Postmaster, and her protected
classes.
We also find that complainant failed to establish a prima facie case of
race or sex discrimination. She failed to show that others not of her
race or sex who were similarly situated were treated differently than
she was treated or that there was a causal nexus between the suspension
and her protected classes.
Assuming without finding that complainant has established a prima
facie case, the agency has articulated legitimate, nondiscriminatory
reasons for suspending complainant for her actions on December 1, 2003.
The ultimate burden that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Complainant has not
shown that the agency's actions were motivated by discriminatory animus.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 25, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency dismissed the basis of retaliation in an April 14,
2004 letter accepting her complaint for investigation. The agency
found that the claim of retaliation failed to state a claim under 29
C.F.R. �1614.107(a)(1) because complainant did not engage in any prior
protected activity. Complainant has not raised the agency's dismissal
on appeal and does not claim that she engaged in prior, protected EEO
activity. Nevertheless, to the extent that the instant appeal includes an
appeal from the dismissed retaliation claim, we find that the retaliation
claim was properly dismissed by the agency because complainant has not
shown that she engaged in any prior protected activity.