01990130
04-19-2000
Debra O'Sullivan, Complainant, William J. Henderson, Postmaster General, United States Postal Service (SE/SW Region), Agency.
Debra O'Sullivan v. United States Postal Service
01990130
April 19, 2000
Debra O'Sullivan, )
Complainant, )
) Appeal No. 01990130
) Agency No. 4E852017097
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(SE/SW Region), )
Agency. )
)
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, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges she
was discriminated against her in various ways which are discussed below.
The record reveals that during the relevant time, complainant was employed
as a letter carrier, at the agency's Northwest Station. Complainant
alleged that she was subjected to both sex-based discrimination and
a hostile work environment. Complainant sought EEO counseling and,
subsequently, filed a complaint on December 16, 1997. At the conclusion
of the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge. Complainant did not request
a hearing. Thereafter, the agency issued a FAD, finding no discrimination.
It is from this FAD that the complainant now appeals. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
AFFIRMS the FAD.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against based on her sex.
BACKGROUND
Complainant believes that she was discriminated against on May 1,
1997 when she was called into a meeting with her supervisor and a union
steward and advised that she was talking too loud. The agency indicates
that complainant was observed talking too loudly and that complainant
was admonished consistent with office policy and established management
practices.
Complainant also believes that she was discriminated against when on May
1, 1997, she was used as an example in a stand-up sexual harassment talk.
The record reveals that complainant's supervisor gave a stand-up talk
on sexual harassment. In the stand-up talk, RMO used complainant, as
a confederate in a sexual harassment scenario. RMO used complainant
to demonstrate acceptable responses to sexual harassment by members of
the public. The record reveals that complainant previously asked for
management's direction in dealing with sexual harassment by members of
the public. RMO later apologized to complainant for including her in
the demonstration without first gaining her permission.
Complainant contends that she was again discriminated against on May 6,
1997 when a manager recommended a letter of warning, but ultimately issued
complainant an official discussion for loud and disruptive behavior on
the workroom floor. RMO indicates that the discipline was appropriate
in that complainant was previously given informal discussions for the
same conduct. The record reveals a system of graduated discipline.
Complainant alleges discrimination when on May 6, 1997, her supervisor
commented, "she has to deviate; she has to deviate." According to the
agency, complainant asked the station manager if she could deviate from
her route to deliver express mail. The Station Manager indicated that
she could deviate.
Complainant, again alleging discrimination, claims that on May 9,
1997, she received an official discussion about irregular attendance.
The agency supplies complainant's attendance reports which indicate that
complainant used 89.44 hours of unscheduled sick leave. The agency
indicates that complainant's overall sick leave use justified her
official discussion.
Complainant argues that she was discriminated against on May 14, 1997,
when she was told that she was wasting time at work. She also claims
that her mail case was relocated so that it faced her supervisor. The
agency indicates that complainant was observed carrying on conversations
with other carriers and not casing her mail. The agency maintains that
the complainant was justifiably told that she was wasting time.
The agency further indicates that it relocated complainant's case to
increase her productivity on the workroom floor and to reduce the impact
of complainant's loud talking.
Complainant indicates that the discrimination continued on May 24,
1997, when she was forced to report to work on her day off, and was
then sent home. The agency discloses that all carriers were required
to report on that day and that complainant was allowed to leave after
a request from the Union.
ANALYSIS AND FINDINGS
Complainant claims both sex-based discrimination and sexual harassment.
Nonetheless, this case lacks evidence that the conduct in question was
sexual in nature. For example, the record is devoid of an incident where
the RMO made sexual innuendos to appellant, or requested sexual favors
from her. In the absence of evidence establishing the sexual nature of
the conduct, it cannot be characterized as sexual harassment.
For complainant to prevail on a sex-based discrimination claim, she
must initially establish a prima facie case by demonstrating that he
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 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). Where the agency articulates legitimate and
nondiscriminatory reasons for its actions, we can dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); 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).
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. In reaching this conclusion, we note
that complainant has failed to tie any of the alleged discriminatory
conduct to her sex.
To the extent that complainant's allegations can be viewed as raising
a claim of sex based harassment, we find that complainant has not
demonstrated that there is a connection between the alleged discriminatory
treatment and her membership in the protected groups. Not only was
there nothing overtly discriminatory about the three incidents in
question, but it appears that there were legitimate reasons for each of
them. Furthermore, we find that the three incidents were not sufficiently
severe or pervasive to alter the complainant's employment and created
an abusive working environment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). Accordingly, we find the complainant has not
established that she was discriminatorily harassed.
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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.