Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120113498 (E.E.O.C. Jun. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120113498

Hearing No. 541-2011-00040X

Agency No. 1E-801-0060-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 19, 2011 final order 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. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer,
Custodial at the Agency’s Processing and Distribution Center in Denver, Colorado. On
October 19, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. Since May 2009, she has not received higher level pay; and

2. On June 30, 2009, a co-worker (CW1) injured her eye and, after reporting the
incident, management failed to take any action to stop the harassment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ granted the
Agency's motion for summary judgment and issued a decision on May 9, 2011.
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In the decision, the AJ determined that Complainant had not established a prima facie case of
discrimination as to claim (1). Specifically, the AJ determined that in Complainant’s position,
higher-level work involved one of the following: (1) tow-motor assignment, which was done
every day to pick up trash; (2) fork-lift assignment, which was done as needed; (3), high
dusting with the verta-lift, which was done regularly when there was enough staff, mostly on
weekends; (4) street sweeper, mostly for parking lots in summer and infrequently; and (5) the
two and one-half ton truck assignment, which was done as needed and less frequently. Thus,
to reliably get higher-level work, an employee had to accept the tow assignment for trash,
which was the only higher level assignment which occurred daily. Complainant’s supervisor
(S1) stated that Complainant refused to work the tow-motor assignment because she believed it
was too dirty. Additionally, the record revealed that Complainant did receive some higher-
level work/pay, particularly on the verta-lift. Finally, the record showed that two co-workers
received more hours doing higher-level work because they both worked the tow-motor trash
duties. As a result, the AJ found that Complainant had not shown that she was discriminated
against as alleged.

Finally, as to Complainant’s hostile work environment claim, the AJ found that on June 30,
2009, Complainant and CW1 had a work-related disagreement. CW1, a group leader, told
Complainant to sweep an area that was surrounded by yellow caution tape, but someone in
safety told Complainant not to enter the area. S1 told Complainant that she should have just
swept the area. Complainant later asked CW1 for a 3971 form to request time off.
Complainant alleged that CW1 threw it at her and that the paper caught her in the eye. The AJ
noted that witnesses disputed that the document hit her in face. Nonetheless, management
placed CW1 on emergency off-duty status while an investigation was conducted into the
incident. Subsequently, CW1 received a Letter of Warning for the incident and both were told
to avoid each other. Additionally, S1 began signing Complainant’s forms rather than CW1.

Complainant additionally alleged that CW1 asked co-workers about her whereabouts and
followed her. The AJ determined that part of CW1’s job as group leader was to check on her
work and know her location. The AJ found that it was clear that Complainant and CW1 had
mutual dislike; however, the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. The Agency subsequently issued a final order adopting
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she has clearly shown that she was the victim of
discrimination. Further, Complainant alleges that the Agency did not take her allegations
seriously. Accordingly, Complainant requests that the Commission reverse the final order.

0120113498

3
ANALYSIS AND FINDINGS

The AJ’s Issuance of Summary Judgment

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.
An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant's favor, as explained below.

Disparate Treatment

To prevail in a disparate treatment claim, 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 Constr. Corp. 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S1 affirmed that he has trained Complainant and other employees to be able to
perform higher-level assignments in a rotation. ROI, at 119. S1 maintained that Complainant
asked not to perform the most frequently available higher-level assignment, tow-motor duties,
because she felt it was too dirty. Id. Further, Complainant asked not to be considered for the
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two and one-half ton truck duties. Id. at 119-20. S1 confirmed that Complainant asked to be
considered for verta-lift/high dusting and fork-lift assignments. Id. at 120. The fork-lift
assignments were infrequent and only took a few minutes to complete; therefore, S1 did not
use his rotation list for those duties. Id. For the verta-lift/high-dusting assignments, S1 stated
that he worked down the rotation list based on seniority and Complainant, as the least-senior
employee, was lower in the rotation, but had opportunities to perform this work. Id. S1 noted
that Complainant was not qualified for scissor-lift duties and was not considered for that
assignment. Id. at 181. Finally, S1 confirmed that Complainant did perform work on the wax
team; however, these duties were not considered higher-level. Id. at 181.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record does not establish that Complainant’s race or sex was a factor in any of the
Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons were not the real reasons and
that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry
this burden. Accordingly, the Commission finds that Complainant has failed to show that she
was discriminated against as alleged.

Hostile Work Environment

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. U.S. Postal Serv., 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 (Mar. 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).

Here, Complainant alleged that CW1 injured her eye and management failed to take any action
after she reported the incident. Further, Complainant claimed that CW1 often watched her and
asked other employees about her whereabouts. Even assuming that the alleged incidents
occurred as Complainant alleged, Complainant failed to show that they were motivated by
discriminatory animus. S1 stated that as a group leader, CW1’s responsibilities included
checking on the performance of employees. ROI, at 181. S1 maintained that after
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Complainant complained about CW1 to him, he told CW1 to continue checking her
performance, but to leave her alone and that he would handle talking to Complainant. Id. In
addition, CW1 was placed on emergency off-duty status without pay while the June 30, 2009
incident was investigated and was subsequently issued a Letter of Warning for unacceptable
conduct. Id. at 181, 184-91. Complainant did not claim that there were any subsequent
incidents or any other interaction between them.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that any of the Agency's actions were based on discriminatory
animus. As a result, the Commission finds no basis to disturb the AJ’s summary judgment
decision finding that Complainant was not subjected to discrimination or a hostile work
environment as alleged. The Agency’s final order is AFFIRMED.

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 (Nov. 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).
0120113498

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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

June 20, 2013
Date