01A23208
10-18-2002
Cora M. Haywood, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cora M. Haywood v. United States Postal Service
01A23208
October 18, 2002
.
Cora M. Haywood,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23208
Agency No. 1H-375-0001-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Data Conversion Clerk at the agency's Memphis, Tennessee
Processing and Distribution Center. Complainant sought EEO counseling
and subsequently filed a formal complaint on May 28, 2002, alleging that
she was subjected to harassment and discriminated against in reprisal
for prior EEO activity when:
(1) On August 3, 2000, complainant was given an investigative interview;
and
On September 22, 2000, complainant was issued a Notice of Seven-day
Suspension.<1>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination based on retaliation; that the agency
articulated a legitimate nondiscriminatory reason for its actions; and
that the actions about which complainant complained were not sufficiently
severe or pervasive as to alter her working conditions. Finally, the
agency noted that because the record shows that complainant worked during
the period in which she was to serve her suspension, dismissal of claim
(2) was proper pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim.
Neither complainant or the agency make any contentions on appeal.
Disparate Treatment
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). Complainant
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,
because 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).
Specifically, the agency included evidence in the record showing that
complainant was absent without leave or late on thirteen occasions
totaling 303.38 hours. The agency contends that complainant was issued
the suspension because of these absences and tardiness. Complainant
maintains that she received an on-the-job-injury on November 19, 1999,
which resulted in her absence for 140 hours, but did not include in the
record any evidence of the injury or anything showing that the resulting
leave was ultimately approved. However, even taking into account the
absences that resulted from the alleged on-the-job-injury, complainant
was still late or absent without leave on ten occasions for a total of
163.37 hours. Moreover, the record contains a copy of a Notice of Seven
Day Suspension issued to a similarly situated employee who was absent or
late for a total of 58.44 hours. Consequently, we find that the agency
met its burden.
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). Other than her claim that part of her
total leave was the result of the on-the-job injury, complainant failed
to provide any evidence suggesting that the agency's explanation was
pretext for discrimination.<2> Consequently, the Commission finds that
complainant failed to prove that the agency's actions were motivated by
discriminatory animus.
Harassment
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) she is a member of the
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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
However, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
When viewed together and in a light most favorable to complainant, claims
(1) and (2) are too isolated and insufficiently severe to establish a
hostile work environment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
October 18, 2002
__________________
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
______________________________
1Although complainant noted on her formal complaint that her supervisor
�continue[d] harassing me as he had done since I filed the EEO Complaint
in 1999," the record fails to identify any other instances of alleged
harassment to which complainant was subjected.
2Because we find that complainant failed to meet her burden of showing
that the agency's explanation was pretext for discrimination, we will
not address the agency's dismissal of the complaint for failure to state
a claim.