0120142057
10-21-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142057
Agency No. 4K-300-0201-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 1, 2014 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Full-Time Sales, Services/Distribution Associate at the Agency's Clarkesville, Georgia Post Office.
On September 21, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
1. on May 10, 2012 and ongoing, management has denied her opportunities to work on holidays;
2. on May 10, 2012 and ongoing, management has denied her overtime opportunities; and
3. on May 10, 2012, management abolished her job assignment.
After the investigation of the formal complaint, 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 initially requested a hearing. However, Complainant subsequently withdrew her hearing request. Consequently, the Agency issued the instant final decision on May 1, 2014, pursuant to 29 C.F.R. � 1614.110(b).
The Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate. The Agency nevertheless addressed the instant complaint on the merits, finding no discrimination. Specifically, the Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the Agency found that the record simply did not support Complainant's claim that the incidents making up her harassment claim occurred because of her prior protected activity.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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 must first establish a prima facie 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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. See 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster stated that in regard to claim 1, her understanding of the "pecking order" to assign holiday work under the collective bargaining agreement is that Part-Time Flexible employees are scheduled first, following by Full-Time Regular employees and Part-Time Regular employees with the necessary skills who have volunteered beginning with the most senior followed by Postal Service employees.
Further, the Postmaster stated that the Clarksville Post Office "is not scheduled to receive mail on Sundays and some holidays; when we do receive mail on certain holidays, it is not a significant amount of volume to warrant working a full time employee 8 hours. I schedule a Part time flexible for 2-6 depending on amount of mail volume received."
Regarding claim 2, the Postmaster stated that Complainant "has worked overtime on many occasions until an employee transferred to Clarkesville in February of 2012. Since then, overtime has been minimal except for the occasions of employees on leave."
The record reflects that from January 1, 2012 to May 10, 2012, Complainant received 11.06 hours of overtime. The record further reflects that from May 5, 2012 to November 23, 2012, Complainant received 5.23 hours of overtime. Complainant did not sign the Overtime Desired List for the January 1, 2012 to September 30, 2012 time period.
Regarding claim 3, the Postmaster stated that Complainant's job was abolished because the Clarkesville Post Office "needs the Full time regular on the window 8 hours; a part time flexible reports at 4:30 each morning and is out in 6 hours or less. I have another part time flexible that reports for distribution and box section at 7:30 each morning. Due to the decline of mail volume [Complainant's] schedule was abolished to meet our goals and productivity and the operational needs of the office. Also, due to her knowledge of the window operations it makes more sense that a seasoned professional be scheduled for the 8 hour window operations."
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including 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. The harassers' 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).
In the instant case, as already determined in the above discussion, we find that the record does not support a finding that Complainant was subjected to any Agency action because of her prior protected activity. Therefore, she cannot prove that she was subjected to a discriminatory hostile work environment.
Therefore, after a review of the record in its entirety, including consideration of all statements 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.
Because we affirm the Agency's finding of no discrimination for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to cooperate).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 21, 2014
__________________
Date
2
01-2014-2057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142057
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