0120093726
07-27-2011
Dawn M. Pullano, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Dawn M. Pullano,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120093726
Agency No. 4J-606-0187-08
DECISION
On September 8, 2009, Complainant filed an appeal from the Agency’s
August 12, 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. The Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the final Agency decision properly found
that Complainant has not established that she was subjected to unlawful
discrimination and harassment based on race.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part Time Flexible (PTF) Schedule City Carrier at the Agency’s
Mount Greenwood Station in Chicago, Illinois.
On September 17, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of race (Caucasian)
when:
1. From July 15, 2008 to December 13, 2008, Complainant was subject
to discriminatory harassment, in regards to, but not limited to,
pre-disciplinary interviews (PDIs); threats of discipline; threats of
removal; unfair work assignments; interactions with her supervisor (S1)
(African-American) and manager (M1) (African-American) concerning her
work performance; and requests for overtime; and
2. Since January 16, 2009, Complainant was subjected to discriminatory
harassment, including, but not limited to, she was sent home because
she would not violate her doctor’s restrictions; she was threatened
with discipline; and she was called derogatory names.
The record reflects that Complainant was hired on May 24, 2008, and was
subject to the standard 90-day new hire probationary period. During this
probationary period, S1 and M1 encouraged Complainant to complete her
delivery route more quickly as she consistently took longer than the
allotted time, resulting in penalty overtime. S1 and M1 repeatedly
admonished Complainant for using penalty overtime. During the week of
July 15, 2008, Complainant worked unauthorized overtime. She was then
given training on July 18, 2008, regarding appropriate procedures for
overtime request forms. She worked unauthorized overtime again during
the week of August 2, 2008. Complainant alleged that SUP’s and MAN’s
expectations of her were too high and they did not allow sufficient
time for Complainant to familiarize herself with the delivery route.
S1 and M1 responded that Complainant had been on the same route for 4 to 5
weeks and should have been able to complete the route in a timely fashion.
Complainant’s 60-day evaluation, completed on or about July 24, 2008,
included “unsatisfactory” ratings for Work Quantity, Work Relations,
Work Methods, and Personal Conduct. On August 7, 2008, S1 reported
that she could not find Complainant along her assigned delivery route
for forty minutes. On August 25, 2008, Complainant informed S1 that she
would not report to work for the next week as per her doctor’s orders.
In response, S1 called M1 and together they informed Complainant that she
would be terminated, but a Notice of Proposed Removal was never generated.
S1 and M1 were unable to follow through with the termination because
Complainant’s probationary period had ended. On September 10, 2008,
Complainant was issued a Letter of Warning regarding her accumulation
of unscheduled absences. By the end of 2008, Complainant had amassed
a total of 120 hours of unscheduled absences.
On September 12, 2008, S1 encouraged Complainant to work an eight-hour
workday with no penalty overtime that day. Complainant asked what
would happen if she went over eight hours. S1 told Complainant that
she was not permitted to go over eight hours. S1 admitted to having
yelled at Complainant during this conversation, but said that it was in
response to Complainant’s rude and loud tone. S1 said she yelled at
Complainant in an effort to calm her down. This conversation resulted
in a Pre-Disciplinary Interview for Complainant.
On September 22, 2008, Complainant used overtime to finish her route and
S1 instructed her to go out and deliver more mail. Complainant refused
and said she had to go home to take care of her ailing father.
On January 16, 2009, Complainant experienced a tingling and numbness
in her hands. Her doctor restricted her to lifting a maximum of
twenty pounds and two hours of intermittent grasping and/or gripping.
On January 27, 2009, Complainant was given an Offer of Modified Duty
Assignment (OMDA) which she refused because she believed it to be beyond
her doctor’s medical restrictions. Repeatedly, Complainant came to
work, did not work because she felt her assignment did not comply with
her doctor’s restrictions, and was sent home because there was no other
work for Complainant.1 On May 6, 2009, Complainant accepted an OMDA.
Complainant alleged that on or about February 9, 2009, M1 called her
“mental.” M1 denies that accusation, but does admit to asking
Complainant if she was crazy. M1 also stated during this interchange
that he recommended Complainant go to the Employee Assistance Program
(EAP) for her confrontational behavior.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.
The Agency’s final decision found that Complainant failed to show
evidence of harassment which rises to the level of a hostile work
environment because the Agency’s conduct was not sufficiently pervasive
or severe so as to alter the conditions of Complainant’s employment.
Thus, there was no hostile work environment. Complainant also failed
to demonstrate a prima facie harassment claim because she failed to show
the Agency’s conduct was based on Complainant’s protected class.
The Agency’s final decision also concluded that Complainant failed to
establish a prima facie case of disparate treatment based on race because
she failed to produce any similarly-situated comparators outside her
protected class who were treated more favorably. Furthermore, it found
that Complainant did not produce evidence that would raise an inference
of discrimination.
The Agency nonetheless proffered the legitimate, non-discriminatory
explanation that S1’s and M1’s vigilance and critiques of
Complainant’s work performance were initially a result of the
probationary period and, later, of her sub-par work performance.
Specifically, the Agency noted that S1 performs street supervision on
all new employees; three trainers refused to work a second day with
Complainant because of her “attitude”; the Handbook EL-312 lists
regular attendance as an employee responsibility; M1 performed several
street checks on Complainant and was unable to find her; M1 considered
PTF Carriers as available to perform duties as assigned and should
be flexible; and M1 stated overtime cannot be used at an employee’s
discretion, but must be approved.
The Agency’s final decision concluded that Complainant did not prove
the Agency’s legitimate, non-discriminatory reasons were pretext for
racial discrimination. The Handbook EL-312, Section 584.2, states that
during an employee’s probationary period management is responsible
for giving constant informal evaluations and providing guidance to the
employee to correct any deficiencies. The Agency stated that Complainant
was resistant to guidance and at times, she was either argumentative or
simply refused to obey instructions. It found that Complainant did not
demonstrate that the Agency’s reasoning contained the inconsistencies
or weaknesses required to meet the threshold for pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant avers she faced constant harassment and
discrimination based on race, including, but not limited to: she did not
receive a copy of her 30-day evaluation; S1 and M1 had unreasonable
performance expectations given her status as a new mail carrier;
M1 “talked to her like a dog”; M1 called her “crazy”; the
Agency’s OMDAs were not within her medical restrictions and instead
of getting clarification from her doctor, the Agency denied her work;
other employees were not sent home due to lack of suitable work; after
the three trainers refused to work with Complainant, the Agency should
have placed her with another trainer.
In response to Complainant’s appeal, the Agency requests the
Commission affirm its final decision. The Agency reiterates that
Complainant failed to establish a prima facie case of harassment or
disparate treatment. Additionally, the Agency argued that it proffered
legitimate, non-discriminatory reasons for its actions which Complainant
did not show to be pretext.
STANDARD OF REVIEW
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (Nov. 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”).
ANALYSIS AND FINDINGS
Harassment Based on Race
Harassment is actionable only if the incidents to which Complainant
has been subjected were “sufficiently severe or pervasive to alter
the conditions of [Complainant's] employment and create an abusive
working environment.” Harris v. Forklift Sys, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
78 (1998); Cobb v. Dep't of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997). To establish a claim of harassment, Complainant must
show that: (1) she is a member of a statutorily protected class; (2)
she was subjected to unwelcome verbal or physical conduct related to her
membership in that class; (3) the harassment complained of was based on
her membership in that class; (4) the harassment had the purpose or effect
of unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Roberts v. Dep't
of Transportation, EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further,
the harasser's conduct is to be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994); Brockington v. Dep’t of Veterans Affairs, EEOC Appeal
No. 0120080936 (May 19, 2011); Manuel v. Dep’t of Agriculture, EEOC
Appeal No. 0120082594 (May 20, 2011).
We find that Complainant failed to establish that she was subjected
to a hostile work environment. We find that there is insufficient
evidence in the record to show that the cumulative incidents cited are
sufficiently severe or pervasive to create a hostile work environment.
Moreover, we find that Complainant failed to establish that any of the
alleged harassment occurred because of her race.
Many of Complainant’s allegations involved her objection to criticism of
her work performance, but the Handbook states that “close observation
and analysis of new employee’s performance” is acceptable and
supervisors are responsible for giving feedback, including admonishments.
S1’s and M1’s actions were within the purview of expected managerial
responsibilities during an employee’s probationary period. After her
90-day probationary period, Complainant’s work performance elicited
justifiable rebukes and encouragement for improvement from S1 and M1.
Additionally, we note that Complainant did not provide any evidence
which demonstrated racial animus on the part of either S1 or M1.
Disparate Treatment
To prevail in a disparate treatment claim such as this, a complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially 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). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we will assume, arguendo, that Complainant satisfied
the prima facie case for race. The burden of production then shifts
to the Agency to articulate a legitimate, non-discriminatory reason to
rebut the prima facie case. The Agency met this burden by citing the
Handbook for the proposition that S1 and M1 were responsible for giving
Complainant continuous feedback, including admonishments, in order to
improve her work performance. In response to the allegation that only
Complainant was given extra mail to deliver, S1 stated that all PTF
Employees receive extra mail to deliver. In response to the allegation
that no other employees were sent home for lack of work, the S1 proffers
documentary evidence of another PTF City Carrier who was sent home when
there was no work available within her medical restrictions.
Once the Agency articulates a legitimate, non-discriminatory reason, any
presumption of discrimination created by the prima facie case disappears.
Hicks, 509 U.S. at 507; United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715 (1983). See also Hernandez v. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep’t of Health and HuM1 Services, EEOC Request No. 05900467
(June 8, 1990). The complainant can then prevail only if she proves
that the employer’s reasons are not only pretext, but are pretext for
discrimination. Hicks, 509 U.S. at 507, 516; Nichols v. Grocer, 138 F.3d
563, 566 (5th Cir. 1998); Swanson v. General Services Administration, 110
F.3d 1180, 1185 (5th Cir. 1997). See also Papas v. United States Postal
Service, EEOC Appeal No. 01923753 (March 17, 1994); Bradford v. Department
of Defense, EEOC Appeal No. 01940712 (Sept. 20, 1994). The complainant
always carries the “ultimate burden of persuading the trier of fact
that he has been the victim of intentional discrimination.” Burdine,
450 U.S. at 254; Hicks, 509 U.S. at 511.
The Commission finds that the record is devoid of any persuasive evidence
that discrimination was a factor in any of the Agency’s actions.
Furthermore, Complainant has failed to demonstrate that the Agency’s
legitimate, non-discriminatory reasons are inconsistent or weak.
She has not shown how the actions of S1 or M1 were anything other than the
standard managerial responses to her behavior as an employee, or how those
actions were dictated by animus on the part of S1 or M1 due to her race.
Ultimately, Complainant does not show by a preponderance of the evidence
that the Agency’s legitimate, non-discriminatory reasoning is pretext
for race discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision because the preponderance of the evidence of
record does not establish that unlawful discrimination or harassment
occurred, as alleged.
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).
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
July 27, 2011
Date
1 We note that Complainant did not raise the basis of disability in
her complaint.
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01-2009-3726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013