Catherine A. LaMaur, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120092048 (E.E.O.C. Aug. 27, 2009)

0120092048

08-27-2009

Catherine A. LaMaur, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Catherine A. LaMaur,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092048

Hearing No. 460-2008-0043X

Agency No. 4G770028107

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's February 26, 2009 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. Complainant alleged

that the agency discriminated against her on the bases of race (Caucasian)

and reprisal for prior protected EEO activity under Title VII when:

(1) on March 29, 2007, her postal vehicle was purportedly sprayed with

insect repellant for the second time, and management tolerated this

action, and (2) on April 24, 2007, she was issued a 7-day suspension.

Complainant also added a claim of retaliation for not being allowed to

timely meet with her representative.

The record indicates that as a letter carrier, complainant had a postal

vehicle assigned to her route. On complainant's days off, a relief

carrier would be assigned to cover her route and would use the postal

vehicle assigned to that route. Complainant's co-worker worked as a

relief carrier at the station, and was assigned to cover complainant's

route on March 29, 2007. On March 30, 2007, complainant reported to

the Officer in Charge (OIC) that on March 29, 2007 the postal vehicle

assigned to her route was sprayed with an "irritant." Complainant told

the OIC that the vehicle was "saturated."

An EEO investigator processed the complaint, and a copy of the

Investigative Report was transmitted to the complainant on November 14,

2007. Although complainant initially requested a hearing, on January 28,

2008 the Administrative Judge ordered the complaint withdrawn (Without

Prejudice) based on an agreement between complainant and the agency.

Complainant was given until May 28, 2008 to reinstate her hearing request.

Complainant failed to do so, and thus the agency issued its final decision

pursuant to 29 C.F.R. 1614.110(b).

In its final decision, the agency found no discrimination. The agency

determined that management had cumulatively recited legitimate,

nondiscriminatory reasons for its actions. The OIC stated that

complainant complained that her vehicle had been sprayed by an irritant

after her route was delivered by a relief carrier. In response,

he investigated and determined that this relief carrier had used an

over-the-counter insect repellent, and claimed only to have sprayed

it on his person inside the vehicle. Nevertheless, the OIC purchased

an alternate brand of insect repellent with less scent for the relief

carrier, and instructed him only to spray it on himself when he was

outside the vehicle. He also instructed complainant's supervisor not to

assign the relief carrier to the vehicle complainant used if possible.

The OIC found no evidence that the relief carrier did anything wrong,

violated any Postal Service rules or regulations, or saturated the

interior of complainant's postal vehicle with any substance.

Regarding the suspension, the OIC explained that complainant asked him to

sign a piece of paper attesting to the steps he had taken to rectify the

insect repellent situation. He did not object to signing the document,

but tried to diffuse complainant's emotions about the situation by

requesting that she submit her request through her supervisor. At this

point, complainant grew loud and agitated, and used profanity toward

the OIC. As a result she was removed from the work floor and disciplined

by her supervisor. While the OIC concurred in the suspension, he also

entered into a settlement with the Union that it would be reduced to

a Letter of Warning and expunged from her record in July 2007 if there

were no more problems. There were no more problems, and the Letter of

Warning was removed as scheduled.

Complainant's supervisor explained that he was instructed by the OIC

on March 30, 2007 to have the relief carrier drive a vehicle other

than complainant's whenever possible. He asserted that he has done

everything he could to follow this instruction. He issued complainant

a 7-Day suspension dated April 18, 2007 for improper conduct because

complainant was arguing with the OIC on March 30, 2007. Complainant's

supervisor stated that he personally observed complainant's conduct from

a distance of about three feet and conducted an investigative interview

with complainant about the incident. He noted that complainant did not

deny the conduct or show any remorse, but claimed she had to do what

she did because no one else cared about her.

Regarding complainant's claim of not being able to timely meet with her

representative, the agency stated that complainant was given official

time on May 15, 2007, ten days after her written request. Complainant

has not complained that the amount of time given was not adequate.

Rather, she complains about the delay in responding to her request. The

agency asserted that it reasonably responded to complainant's request for

official time, and the law only requires it to provide what is reasonable.

Here, complainant chose a representative who was located at a different

facility. Thus scheduling her official time requires coordination between

two management teams and consideration of work schedules and operational

needs of two facilities. In such an instance, a delay from the request

to the actual time being scheduled would be expected. In sum, the agency

maintains that it provided complainant with sufficient official time,

and she has not shown that she was aggrieved by any delay.

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. 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).

Under a disparate treatment analysis, complainant fails to satisfy her

burden in this matter. Complainant does not show that any of management's

actions were connected to her claimed bases.

Hostile Work Environment

Claim

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. United States Postal Service, 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

Systems, 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 Systems, 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.

An employer is subject to vicarious liability for harassment when it is

"created by a supervisor with immediate (or successively higher) authority

over the employee." Burlington Industries, Inc., v. Ellerth, 524

U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524

U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not

result in a tangible employment action being taken against the employee,

the employer may raise an affirmative defense to liability. The agency

can meet this defense, which is subject to proof by a preponderance

of the evidence, by demonstrating: (a) that it exercised reasonable

care to prevent and correct promptly any harassing behavior; and (b)

that appellant unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;

Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999). This defense is not available when the

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

demotion, or undesirable reassignment) being taken against the employee.

Here, complainant asserted that based on her statutorily protected

classes, race (Caucasian), and reprisal, her supervisors have continuously

subjected her to a hostile work environment. However, we find that

complainant has not shown that she was subjected to harassment in the

form of unwelcome verbal or physical conduct involving her protected

classes, or the harassment complained of was based on her statutorily

protected classes. Further, complainant has not shown that the purported

harassment had the purpose or effect of unreasonably interfering with the

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

work environment. The agency found that there is no evidence such as

epithets, innuendos, jokes, or statements which indicate that the conduct

complainant complains about was related to her race or any other protected

classification. Rather, the evidence shows that the relief carrier used

the insect repellant on himself on a day that she was not at work and

the scent remained in the vehicle. Because complainant has failed to

put forth any evidence that any action was directed at her because of

her race or in retaliation for prior protected activity, her claim fails.

On appeal, complainant mainly asserts that agency management has

continuously allowed a hostile work environment to fester around her.

However, beyond her bare assertions, complainant has not produced evidence

to show that the agency's explanations are a pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

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

August 27, 2009

__________________

Date

2

0120092048

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120092048