Gladys F. Sevier, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 10, 2005
01a53060 (E.E.O.C. Aug. 10, 2005)

01a53060

08-10-2005

Gladys F. Sevier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gladys F. Sevier v. United States Postal Service

01A53060

August 10, 2005

.

Gladys F. Sevier,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53060

Agency No. 4H-320-0111-03

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning her formal 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 Distribution Window Clerk at the Monument Branch Station

of the Jacksonville, FL Post Office. After undergoing EEO counseling,

complainant filed a formal complaint on July 1, 2003, in which she

alleged that the agency had subjected her to unlawful discrimination

on the bases of race (African-American), sex (female), and reprisal for

prior EEO activity, in the form of a hostile work environment, when:

On March 5, 2003, she was not allowed to cancel leave;

On March 6, 2003, she was not allowed to clock in on the day that she

was scheduled to be on leave;

On March 11, 2003 and March 21, 2003, she was instructed to perform her

accountable duties in a nonsecure manner;

From March 10, 2003 through March 15, 2003, she was instructed to perform

other duties and her work performance was questioned;

On March 21, 2003, she was issued two letters of demand;

On March 22, 2003, she was informed that her leave cancellation would

be handled differently than that of other employees;

On March 28, 2003, she was denied a change of schedule;

On March 31, 2003, and April 1, 2003, she was instructed to perform

accountable duties with a non-audited stamp stock; and

On May 8, 2003, she became aware that information concerning a deceased

relative was handled in a disparate manner.

At the conclusion of the agency's investigation into complainant's

complaint, complainant was informed of her right to request a hearing

before an EEOC Administrative Judge (AJ) or, alternatively, to receive a

final decision by the agency. When complainant failed to respond within

the time period specified in 29 C.F.R. � 1614.108(f), the agency issued

a final decision on February 14, 2005, finding no unlawful discrimination

or retaliation. In so finding, the agency thoroughly discussed each claim

and the relevant evidence of record, and concluded that complainant had

failed to establish that she had been subjected to unlawful discrimination

or retaliation, as alleged. Complainant filed the instant appeal.

On appeal, complainant reiterates her discrimination and retaliation

claims, and challenges the agency's hostile work environment analysis.

The agency requests that we affirm its final agency decision.

Pursuant to 29 C.F.R. � 1614.110(b), complainant appeals from a final

agency decision issued without a hearing before an AJ. Thus, we apply a

de novo standard of review, and our decision is based upon a preponderance

of the evidence. 29 C.F.R. � 1614.405(a). After a thorough review of the

record on appeal, we find that the agency properly concluded in its final

agency decision that complainant failed to prove by a preponderance of the

evidence that she was subjected to unlawful discrimination, as claimed.

Harassment in the form of a hostile work environment is actionable only if

the harassment to which complainant has been subjected was sufficiently

severe or pervasive to alter the conditions of her employment. Cobb

v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).

Hostile work environment claims may be based on the cumulative effect of

individual acts. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115

(2002). To establish a prima facie case of a hostile work environment in

violation of Title VII, the complainant must show that: (1) she belongs

to a statutorily protected class; (2) she was subjected to unwelcome

conduct related to her membership in that statutorily protected class;

(3) the harassment complained of was based on her membership in that

statutorily protected 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.

Roberts v. Dep't of Transp., EEOC Appeal No. 01970727 (Sept. 15,

2000); McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5,

1999)(citing Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982)).

Examining complainant's harassment allegations cumulatively, and even

assuming that complainant has established that each of the alleged agency

actions did in fact occur, a preponderance of the record evidence does not

establish that the complained-of agency actions were either related to,

or were based upon, her race, sex or prior participation in protected

EEO activity, or otherwise support her harassment claim. We find that

complainant has failed to prove the existence of elements 2, 3, and 4, and

thus fails to establish a prima facie case of harassment. In response

to the specific allegations that make up complainant's hostile work

environment claim, the agency provided evidence explaining its actions.

With regard to allegation 1, complainant alleges that when she called

her supervisor on March 5, 2003 to cancel leave that was approved for

the following day, March 6, 2003, complainant's supervisor told her that

complainant would have to send a PS Form 3971 (Request for or Notification

of Absence form) by facsimile or give complainant's supervisor the PS Form

3971 in person. Complainant alleges that she then told her supervisor

that she did not have access to a facsimile machine, and reminded her

supervisor of the common practice to simply phone in a cancellation and

fill out the PS Form 3971 when the employee returned to work on the

day of the scheduled leave. Complainant alleges that her supervisor

then suggested that complainant go to Winn Dixie (a local supermarket)

or somewhere else to fax the PS Form 3971.

Complainant's supervisor, who was named in complainant's prior EEO

activity, explains that she did not allow complainant to cancel leave

for Thursday, March 6, 2003 because she was following her manager's

instructions. Complainant's supervisor explains that Monument Station's

policy or practice for cancelling leave is to have the individual cancel

the leave in writing up to the close of business on the day prior to

the leave. Complainant argues that a White male, a White female, and

an African-American male have all been able to cancel leave and turn in

a PS Form 3971 upon return to work on the day of the scheduled leave.

The only evidence that complainant has submitted regarding the three

comparison employees, however, is a handwritten statement from her

union representative, in which the union representative makes the bald

assertion that during a grievance investigation, he interviewed two of

the comparison employees, and they �said that they had not been denied

the opportunity to cancell (sic) previously approved incidental leave.�

Complainant's supervisor does not recall allowing the White male, White

female, and African-American male to cancel annual leave the day of their

scheduled leave. With regard to allegation 1, we find that complainant

has failed to establish that she was treated differently from similarly

situated employees.

With respect to allegation 2, complainant alleges that when she attempted

to return to work on March 6, 2003, her manager (who was not named in

complainant's prior EEO activity) told her that she could not clock in.

Complainant alleges that her manager had only been the station manager for

about 2 weeks. Complainant argues that she believes that her supervisor

gave complainant's manager her opinion of complainant, which complainant

believes was negative, discriminatory and retaliatory since complainant

had previously filed complaints against her supervisor. Complainant's

manager explains, however, that he did not let complainant clock in on

March 6, 2003 because complainant had not cancelled leave in advance

and Monument Station was staffed so her services were not required.

Complainant's manager explains that to the best of his knowledge, there

was no policy or practice at Monument Station for employees to cancel

prescheduled leave by reporting to work on the days of their prescheduled

leave and thereupon turning in a PS Form 3971. We find that, with respect

to allegation 2, complainant has failed to adequately rebut the agency's

explanation for its action.

With regard to allegation 3, complainant alleges that on March 11, 2003,

and March 21, 2003, her supervisor instructed her to leave the door to

the Stamps by Mail office open, with a bundle of checks on the table,

and the computer still on, contrary to the common practice of securing

the Stamps by Mail office by locking the door, turning off the computer,

and putting away accountable materials that she started to process.

Complainant alleges that she is held responsible for stock that is

assigned to her and that she would have to produce money if anything

turns up missing. Complainant argues that her supervisor was engaging

in this behavior to force her out of her job and create a hostile work

environment.

The record indicates that the supervisor's instructions were based on

the supervisor's need to answer telephone inquiries after complainant

went home for the day. We note that when complainant requested that

the supervisor put her instructions in writing, the supervisor complied

with complainant's request. Complainant's supervisor explains that

complainant is not accountable for the checks until the orders are filled.

With regard to allegation 3, we find that complainant has failed to

adequately rebut the agency's explanation for its action.

With respect to allegation 4, complainant alleges that even though she

sometimes works in the box section or in distribution (in addition to

her duties in Stamps by Mail), her supervisor continually asks her

about productivity, knowing that complainant works in other areas.

Complainant argues that her supervisor is making it seem as if she is

not productive, to harass her and ultimately force her out of her job.

The record indicates that complainant's supervisor asked complainant to

perform duties other than Stamps by Mail on an as needed basis, and did

not question complainant's job performance with respect to productivity.

Complainant's supervisor explains that she simply reminded complainant

of work goals. With respect to allegation 4, complainant has failed to

show any relation between the agency's actions and complainant's race,

sex or prior participation in protected EEO activity.

With regard to allegation 5, complainant alleges that on March 21,

2003, her supervisor came to her as she was working box section, and

demanded that complainant stop what she was doing to read and sign

two letters of demand for uncollected checks. Complainant told her

supervisor that she did not agree with the contents of the demand

letters and did not think that she should sign them. Complainant

alleges that her supervisor stormed out of the office, returned with a

204B supervisor, read the letters to complainant, and told complainant

that complainant had to sign the letters immediately or sign papers to

start payroll deductions. The letters of demand state that complainant

�did not follow check acceptance procedures set forth in Section 311

of Handbook F-1.� Complainant argues that management was employing

more harassment tactics by giving complainant the letters of demand

because �checking the bad check list was not normal practice in the SBM

[Stamps by Mail] operation[.]� Complainant alleges that on November 8,

2002, she was told to start checking all checks by the bad check list.

Complainant alleges that the checks which were part of the demand letters

(issued to her on March 21, 2003) were processed before November 8, 2002.

Complainant alleges that complainant's supervisor could have accepted

the checks because complainant's supervisor works in the Stamps by Mail

office when complainant is not working.

Complainant's supervisor acknowledges issuing complainant the two letters

of demand, and explains that two checks were accepted by the Stamps

by Mail Office on dates which complainant was working in the office.

Complainant's supervisor explains that she followed all proper procedures

in issuing the letters of demand to complainant, and that the issue was

settled through the grievance procedure at Step 1A when the demand letters

were rescinded.<1> We find that, with regard to allegation 5, complainant

has failed to adequately rebut the agency's explanation for its action.

With respect to allegation 6, complainant alleges that on March 22,

2003, complainant's supervisor phoned her at home, and informed her

that from then on, complainant must put cancellation for leave slips

in a manager's hands. Complainant argues that she believes that

her supervisor's actions were in retaliation because it was another

opportunity for her supervisor to make her pay for her prior EEO activity.

The record indicates that on March 22, 2003, complainant's supervisor

was instructed by management to call complainant and inform her that all

cancellation of leave had to be done in writing, and given to a supervisor

at least the day prior to the scheduled leave. Complainant's supervisor

explains that as far as she knows, mostly all employees personally hand a

cancellation slip to a member of management. Although complainant alleges

that a White male and a White female have not been instructed to put

leave slips in a manager's hands, complainant has submitted no evidence

substantiating her bald assertions. Similarly, complainant alleges that

the male employees in the office are not instructed to put leave slips

in a manager's hands, but provides no supporting evidence. With respect

to allegation 6, we find that complainant has failed to establish that

she was treated differently from similarly situated employees.

With regard to allegation 7, complainant alleges that on March 28,

2003, she was denied a change of schedule when she filed a PS Form 3189

(Request For Temporary Schedule Change For Personal Convenience form) for

the next three of four Saturdays to change her begin tour time from 0600

to 0500, for personal reasons. The record indicates that complainant's

supervisor denied complainant's PS Form 3189 based on instructions given

by management. Complainant's manager alleges that he does not recall

that complainant requested a change in schedule on March 28, 2003, or

whether he denied the request. Complainant's manager explains that if he

did deny complainant's change of schedule request, it was denied based on

anticipated staffing needs. Complainant's manager argues that changes of

schedules are, as stated, �for personal convenience� of the employees,

and that managers and supervisors must consider staffing as dictated

by known or anticipated work load when granting changes of schedules.

We find that, with regard to allegation 7, complainant has failed to

adequately rebut the agency's explanation for its action.

With respect to allegation 8, complainant alleges that when she returned

to work on March 31, 2003 from a week of sick leave, her supervisor

had opened her stamp stock. Complainant alleges that this was not a

warranted emergency for her supervisor to go into her stock, and that her

supervisor did not try to reach her (which is required procedure) before

opening her stock. Complainant alleges that her supervisor had removed

items, and that when complainant returned, her supervisor instructed her

to just continue to work from that stock and just accept her word that

everything is fine. Complainant alleges that her supervisor continued

urging her to use that stock, until complainant finally called the Union

to tell them what her supervisor was doing.

Complainant's supervisor explains that during complainant's week of sick

leave, complainant was in the hospital, and complainant's supervisor could

not reach complainant. Complainant's supervisor explains that there were

pending orders locked in complainant's cabinet, so she considered it an

emergency to get those orders filled. Complainant's supervisor explains

that she followed all proper procedures when she opened complainant's

stock, and that she sealed complainant's stock as soon as complainant

requested it to be audited. We find that, with respect to allegation 8,

complainant has failed to adequately rebut the agency's explanation for

its action.

With regard to allegation 9, complainant alleges that when she returned to

work on May 8, 2003, after her brother's burial, she noticed that there

was no announcement of her brother's death taped to the time clock as is

the normal procedure in the Monument Station Post Office when an employee

or an employee's relative dies. Complainant alleges that there was a

little piece of paper on a table which announced her brother's passing,

but that compared to the announcements normally made, the announcement

was insufficient. Complainant argues that her supervisor's insufficient

announcement was her supervisor's way to exercise her racial hatred

by using her position, and was in retaliation for complainant's prior

EEO activity.

The record indicates that complainant's supervisor did not normally

handle the posting of announcements concerning deaths, and that when

complainant called and told her that her brother had passed away,

complainant's supervisor got the information from complainant and

forwarded it to a clerk who normally takes collections or gets a card for

bereaved employees. Complainant has failed to show any relation between

the agency's actions and complainant's race, sex or prior participation

in protected EEO activity.

In conclusion, we find that complainant has not established a successful

hostile work environment claim because she has failed to show that the

actions of which she complained were based upon her membership in a

protected class. After a careful review of the record in its entirety,

including complainant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

it is the decision of the Equal Employment Opportunity Commission to

affirm the agency's final decision because the preponderance of the

evidence of record does not establish that discrimination occurred.

The agency's decision finding no discrimination is AFFIRMED.

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

August 10, 2005

__________________

Date

1 In her appeal brief, complainant acknowledges

that the letters of demand have been rescinded.