01993731
11-14-2001
Cynthia D. Marks v. U.S. Postal Service
01993731
11-14-01
.
Cynthia D. Marks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993731
Agency No. 4H-350-0206-97
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the basis of sex (female) 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 reasons stated herein, the agency's FAD is affirmed.
According to the record, complainant was employed as a Window Clerk,
PS-5 at an Alabama facility of the agency. In May 1997, believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against and harassed her when (1) on March 10, 1997, her postmaster
was hostile toward her when she asked questions about a permit system
computer (computer) she was operating due to the absence of a coworker,
(2) on March 12 and April 2, 1997, two of complainant's non-scheduled
days, her supervisor forced her to report for overtime work , and (3)
on April 22, 1997, her supervisor issued her a Letter of Warning (LOW)<1>
because she failed to report for the overtime.
The postmaster stated, regarding issue (1) that he was not hostile but
instead was impatient with complainant when she repeatedly made errors
on the computer and that he displayed the same impatience with males
who also made repeated errors on the computer. Regarding issues (2)
and (3), complainant's supervisor stated that complainant was asked
to report to work on two of her non-scheduled days because she was the
only available clerk and it is within supervisory authority, under the
collective bargaining agreement between the agency and representative
union, to order a clerk
to work on a non-scheduled day. He stated that complainant received
the LOW because she did not report to work as she was ordered to do.
An investigation was conducted and complainant was informed of her
right to choose either a hearing before an EEOC administrative judge
(AJ) or an immediate FAD. Complainant initially requested a hearing
but later withdrew that request. The agency issued a FAD finding no
discrimination because complainant failed to establish a prima facie
case of discrimination regarding all three issues and failed to establish
pretext regarding issue (2).
Regarding complainant's claim of harassment, the Commission has repeatedly
found that unless the conduct is very severe, a group of isolated
incidents will not be regarded as creating a hostile work environment.
See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996). In the instant case, the complaint challenged several
isolated incidents which were not severe enough to state a claim of
harassment. See, e.g., Zhang v. United States Postal Service, EEOC
Request No. 05970085 (July 17, 1998) (supervisor yelling at complainant
on one occasion is insufficient to demonstrate that complainant's
work environment was altered so as to state a claim of harassment).
The action alleged in issue (1) was taken by the Postmaster, whereas,
the actions alleged in issues (2) and (3) were taken by complainant's
supervisor. There is no evidence that complainant's supervisor was aware
of the hostility allegedly displayed by the Postmaster two days earlier.
The action alleged in issue (3) was discipline issued in accordance with
agency policy. Complainant failed to establish discriminatory harassment
by the agency.
Complainant also alleged disparate treatment based on sex. When a
complainant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the complainant to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated legitimate, nondiscriminatory reasons for
its actions, i.e., impatience with consistent mistakes by both female and
male clerks, business necessity, and appropriate discipline for failing
to report, we may proceed directly to determining whether complainant
satisfied her burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing
that the agency's proffered explanation is unworthy of credence.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Essentially, the fact finder must be persuaded by the complainant that
the agency's articulated reasons were false and that its real reason
was discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
515 (1993).
Complainant stated that she was made the sole operator of the computer
because she was better in operating it than her male coworkers. She
further stated that the Postmaster did not display the same hostility
toward males when they operated the computer. Complainant indicated
that the agency's articulated reasons for issues (2) and (3) were false
because there were coworkers who held other positions who could have
worked her two non-scheduled days and there were male coworkers who were
approved for unscheduled leave on their regularly scheduled work days.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. The fact that complainant was made
the sole operator of the computer displays the Postmaster's impatience
with mistakes made by others on the computer. In addition, the record
is void of objective evidence to prove that the Postmaster was hostile
toward complainant when she did ask questions.
Also, the coworkers that complainant cites as comparators for issues
(2) and (3), i.e., C-1 and C-2, were not similarly situated to her.
Complainant did not want to work overtime because she had a Family
and Medical Leave Act (FMLA) certification on file with the agency,
which stated �would not recommend overtime.� The supervisor indicated,
however, that he interpreted this as leaving overtime to his discretion;
therefore, he asked complainant to report to work on her non-scheduled
days. He stated that he did not have any other qualified person to
work and it was the busiest time of the month. Complainant informed
the supervisor that she would not report unless she was given a �direct
order� to do so. According to the supervisor, he gave complainant
a �direct order� to report to work on her non-scheduled days, but,
as previously noted, she failed to do so. We find that the facts
surrounding C-1's and complainant's failure to report to work differ.
Unlike complainant, C-1 was not given a direct order to report to work
after having had a discussion with his supervisor. Finally, we note
that C-2 held a different position from complainant's.
CONCLUSION
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, the Commission AFFIRMS the
agency's finding of no discrimination.
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
__11-14-01________________
Date
1Initially, the agency issued complainant a 7-day suspension but it was
later reduced to a LOW.