01a55149
11-22-2005
Ilene Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ilene Smith v. United States Postal Service
01A55149
November 22, 2005
.
Ilene Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55149
Agency No. 1C-154-0002-04
Hearing No. 170-2004-00432X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant was hired as a Casual Mailhandler, at the agency's Pittsburgh
Logistics and Distribution Center (L&DC) in Warrendale, Pennsylvania
effective December 6, 2003, not to exceed December 31, 2003.
Complainant filed a formal complaint on February 2, 2004. Therein,
complainant claimed that she was discriminated against on the bases of
race (Caucasian), sex (female), color (White), age (D.O.B. 1/26/49),
and in reprisal for prior EEO activity when:
from December 14, 2003 to December 18, 2003, she was harassed culminating
with the termination of her casual appointment effective December 18,
2003.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Thereafter, the agency filed a Motion to
Dismiss or in the alternative, a Memorandum of Law in Support of the
Postal Service's Motion for Decision Without a Hearing.
In its motion, the agency requested that the AJ issue a decision without
a hearing, finding no discrimination. The agency argued that complainant
failed to establish a prima facie case of disparate treatment race, sex,
color, age and reprisal discrimination. The agency further argued that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated favorably under similar
circumstances. As to complainant's harassment claim, the agency argued
that complainant failed to show that she was subjected to harassment
based on her race, sex, color, age and prior protected activity because
the incidents identified therein were not an adverse action.
The record reflects that the Manager, Distribution Operations (MDO)
stated that he was the deciding official to terminate complainant from
her temporary position for being absent from her assigned work area,
irregular attendance, and failure to follow instructions. MDO further
stated that on December 16, 2003, the Supervisor, Distribution Operations
(SDO) and Acting Supervisor, Distribution Operations (A/SOD) informed
him that because they could not locate complainant, they had to adjust
some of the assignments on the belt and put another employee on the
scale to cover complainant's unscheduled absence. MDO stated that
according to SDO and A/SOD, complainant then reported to her assigned
area 20 minutes after they discovered she was missing. MDO stated that
"since the adjustments had been made, not knowing if the complainant
would return to the work assignment, the complainant was told to end
[her] tour by [SDO]." MDO stated that the next day, December 17, 2003,
complainant called him and asked if she could meet with him.
MDO stated that on December 18, 2003, he met with complainant and A/SOD.
MDO stated that during the meeting, he asked complainant if she was
absent from her work assignment and that complainant said "yes because
she needed to use the restroom." MDO stated that complainant then
explained why she was away from her assignment for 20 minutes because
she used the restroom in the expansion area of the building which is the
furthest restroom from her assigned work area. MDO stated that he asked
complainant why she used this particular restroom, and that complainant
replied that it was because it was the restroom she was instructed to
use during her orientation. MDO stated that following the December 18,
2000 meeting, he interviewed SOD and another Supervisor "that conducted
all of the season casual orientations and safety demonstrations and they
assured me that at no time during any of their sessions did they instruct
any one that they are only permitted to use one of our three restrooms."
Further, MDO stated that "an employee that is absent from the work
assignment, unannounced, for 20 minutes at a time does not meet the
expectations of their positions." MDO further stated that he relied
on Employee and Labor Relations Manual (ELM) sections 666.1, 666.51,
and 666.81 in making his determination to terminate complainant.
Furthermore, MDO stated that while he was not aware of complainant's
prior protected activity, complainant's race, color and sex were not
factors in his determination to terminate her from her temporary position.
The record further reflects that SDO stated that on December 18, 2003,
he was working with A/SOD when they noted that complainant, who had been
assigned to a "critical" position, was missing. SOD further stated after
complainant reported to her assigned area twenty minutes later, he asked
her about her whereabouts. SDO stated that complainant claimed that
she went to the restroom. SDO stated that he had observed complainant
"coming from a direction opposite of both ladies restrooms in our work
section." SDO stated that he informed complainant because of her critical
assignment, she should have informed someone "of her need to leave [the]
section, not just walk away!" SDO stated that he sent complainant home
early because he had "permanently replaced her because I didn't know
where she was, neither did [A/SOD]."
With respect to complainant's claim that on December 14, 2003, she was
subjected to harassment when SDO screamed at her for talking and told
her that she was not permitted to talk to other employees, SDO stated
that it was not true. SDO further stated that on the day in question he
could not talk due to "excessive strain, too much talking." SDO stated
that complainant "may have mistaken my attempt to elevate my voice for
a scream." SDO stated that on the same day, he gave parcel sorting
instructions to a group of temporary Casuals; and that complainant
kept talking to the other Casual beside her "keeping him from getting
my instructions." SDO stated that he instructed both complainant and
the other Casual "not to talk and give the mail their complete attention."
The record reflects that the A/SOD stated that on December 18, 2003, he
and SDO noted that complainant was away from her assigned work area.
A/SOD further stated that complainant "had been gone long enough for
five or six carts of mail to have piled up, stalling mail processing
operations at that point." A/SOD stated that when complainant returned
to her assigned area, SDO approached her to discuss her absence, she "was
loud and confrontational on the work floor." A/SOD stated that following
the incident, he participated in a meeting with complainant and MDO.
A/SOD stated that during the meeting, the MDO asked him if he would
continue to work with complainant and that he said no. Furthermore, A/SOD
stated that he was not aware of complainant's prior protected activity.
The record contains a copy of ELM 666.1, 666.51 and 666.81. According
to ELM 666.1 Discharge of Duties, �employees are expected to discharge
their assigned duties conscientiously and effectively.� According to
ELM 666.51 Protests, "employees must obey the instructions of their
supervisors." According to ELM 666.81 Requirement for Attendance,
"employees are required to be regular in attendance."
On June 17, 2005, the AJ granted the agency's motion for summary judgment.
The AJ determined that the agency properly set forth the undisputed
facts and applicable law in its motions, incorporated them in his
decision, and found no discrimination. Specifically, the AJ found
that complainant failed to establish a prima facie case of disparate
treatment race, sex, color and age discrimination. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in complainant's protected classes were treated
differently under similar circumstances. As to complainant's reprisal
claim, the AJ found that complainant failed to establish a prima facie
case of reprisal discrimination because she failed to establish a casual
connection between her prior protected activity and the actions at issue.
Furthermore, the AJ found that assuming, arguendo, complainant established
a prima facie case of race, sex, color, age and reprisal discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. The AJ concluded that complainant failed to establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination.
Regarding complainant's harassment claim (when on December 14, 2003,
SDO raised his voice, but generally complainant's allegations concern
directives given by the supervisors that she did not appreciate or agree
with), the AJ found that complainant failed to establish a prima facie
case of harassment. Specifically, the AJ found that alleged harassment
was not sufficiently severe or pervasive to create a hostile environment.
On June 28, 2005, the agency issued a final action implementing the AJ's
decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown
that the agency's articulated reasons were a pretext for discrimination.
We further agree with the determination of the AJ that the incidents of
harassment identified by complainant were neither sufficiently pervasive
or severe to create a hostile environment.
Accordingly, the agency's final action implementing the AJ's finding of
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
November 22, 2005
__________________
Date