0120114095
02-17-2012
Joanette E. Woods, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Joanette E. Woods,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120114095
Hearing No. 480-2010-00334X
Agency No. 1Y-520-0077-09
DECISION
On September 1, 2011, Complainant filed a timely appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) from a
final Agency decision (FAD) dated August 4, 2011, 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 appeal is accepted pursuant
to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against
based on her race (Black) and sex (female) when she was subjected to
inappropriate comments and ongoing harassment, including but not limited
to being issued a Notice of Suspension on April 29, 2009, for 14 days
effective May 29, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk (Registry Clerk) at the Agency’s LAX
International Service Center in Los Angeles, California. She filed an
EEO complaint on October 14, 2011, alleging the above issue.1
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). The AJ
denied Complainant’s request for a hearing on the grounds that she did
not comply with the AJ’s Order Continuing Agency’s Motion to Compel,
and follow up Order to Show Cause Why Request for Hearing Should Not
Be Dismissed.2 The AJ remanded the complaint to the Agency to make a
FAD based on the investigation. Thereafter, the Agency issued a FAD
finding no discrimination.
On April 29, 2009, the Supervisor of Distribution Operations (S1,
Black female), with the official concurrence of the Manager of
Distribution Operations (S2, Hispanic male), issued Complainant a
notice of 14 day suspension for Unacceptable Conduct/Failure to Follow
a Direct Order/Insubordination/Threatening Behavior Towards Management.
S1 specified the following. On April 13, 2009, the Acting Supervisor of
Distribution Operations (S3, Asian female) asked Complainant to dispatch
registry mail to the dock, and Complainant replied “No, I am not the
Expediter.” Complainant yelled at S3. S3 told S2 that Complainant was
refusing to take the registry mail to the dock for dispatch. When S2
asked Complainant to do so, Complainant replied “No. I don’t have
a key and I don’t want to get Locked Out.” S2 then gave a direct
order, and Complainant refused, got loud, and threw her hands in an
intimidating gesture. S2 asked Complainant five times to dispatch the
registry mail, and Complainant refused. S3 began to run away stating
Complainant scared her, and S2 asked her to return.
In their EEO investigative affidavits, S2 and S3 corroborated the charges.
S2 and S3 recounted Complainant’s refusal to follow instructions to
dispatch the mail, yelling, and waving her hands. S2 elaborated that
Complainant nearly scratched his face with her fingernails. S3 elaborated
that Complainant argued with S2, yelled it was not her job, and she got
scared when she saw them arguing and began to leave the area.
Complainant enclosed various writings with her affidavit. These included
statements she submitted to the union contending that she tried to comply
with S2 and S3’s instructions, but had difficulty doing so because she
was not the expediter and needed to look around for the registry mail
that needed to be dispatched. She contended that she attempted to put
the mail in an elevator for dispatch but it was full. She stated S2 was
loud and rude and saying she was refusing his direct order. Complainant
contended that she did not delay the mail. According to the notes of a
management investigative interview, Complainant contended that she was
trying to explain to S2 that she needed to look for the mail, but he
did not want to listen. On dispatching the mail, Complainant contended
there was a new knob on the gate and she had difficulty opening it.
She submitted a statement from a co-worker. It appears from a reading of
the statement that the witness only saw a small portion of the incident.
Report of Investigation (ROI), Affidavit A, at 24-25. The witness
wrote that S2 had anger problems and threatens everyone on the floor.
Complainant wrote the AJ that she made threats to no one.
Complainant raised other incidents of alleged harassment. She contended
that twice in June 2009, S1 instructed her to work in an unsafe manner
by telling her to cut off the safety switch on the SPBS machine while
changing mail sacks. The mail from the machine shoots out and drops into
the sacks. Complainant contended that boxes have stricken her on her
face, chest and hand, causing her to break fingernails. S1 countered
that the safety stays on when putting the container which receives
the mail in place, and Complainant was allowing the mail to fall on
the floor rather than put the container in place to catch the packages.
S1 stated Complainant was leaving the safety on too long causing a delay
in the mail, so she informed her to turn it off and keep the mail moving.
Complainant contended that S3 made disrespectful remarks about her
weight and size, such as having fat arms and needing to exercise.
S3 denied making these comments.
Complainant also claimed that S1 and S3 spoke to her in a rude and
disrespectful manner. For example, she contended that when she was in
the union office on September 10, 2009, S3 asked her if she was off
the clock and loitering. Complainant claimed that when she did not
respond, S3 hollered at a union official, asking if she had people
in there loitering. The EEO investigator asked S3 to respond to the
loitering comment, and S3 wrote that he recalled people being in the
union office off the clock and advising them they could not be there
off the clock. Complainant claimed that on September 25, 2009, she
was sitting at her desk logging into her computer and S3 rudely asked
what she was doing and what is that, a screen saver? Complainant wrote
she did not say anything, and as S3 walked away he said I don’t see
you working. S3 stated that he asked Complainant what she was doing
because her screen saver was not postal related. He explained that
Complainant is not authorized to use the computer for personal reasons,
and told her he did not want to see her surfing the web.
Complainant contended that she gets blamed by S2 when others don’t
do their job of dispatching registry mail, and if S2 is not there,
S1 continues the harassment by saying things like I’m going to
call S2 and put you out of the building again. In response to the EEO
investigator’s question of whether she threatened to put Complainant out
of the building on a specific date, S2 wrote no. S2 wrote that whenever
Complainant did not want to follow instructions she would say “you
are harassing me,” and Complainant had a problem following instructions.
On the suspension, the Agency found that Complainant did not establish
a prima facie case of race or sex discrimination because she did
not show she was disparately treated or draw any other inference
of discrimination. The Agency found that even assuming Complainant
made out a prima facie case of discrimination, the Agency articulated
legitimate, non-discriminatory reasons for its action. It relied on the
statements of S2 and S3, and various policies on performance and conduct.
The Agency found that Complainant did not show its explanation for
suspending Complainant was pretext to mask discrimination.
The Agency found that Complainant did not establish a prima facie case
of harassment because she did not show actions were taken against her
because of her race and sex. It relied on the denials and explanations,
as applicable, of S1 and S2.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally 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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Agency articulated legitimate, non-discriminatory reasons for
suspending Complainant, as explained in the charges suspending her,
which were corroborated by the statements of S2 and S3.
In an effort to prove pretext, Complainant denied some of the charges.
She has not shown by a preponderance of the evidence that the charges
supporting the suspension did not occur. Complainant wrote that on
the day of the events giving rise to the suspension, she was placed
on Emergency Off-Duty Status and remained on it for seven to ten days,
and contended that for this reason she should not have been suspended.
S2 explained that he sent Complainant home because of her actions that
day. Complainant does not point to any policy or practice showing that
being sent home on an emergency basis precludes a subsequent suspension
for misconduct. She has failed to prove pretext or discrimination.
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6
(Mar. 8, 1994).
Complainant failed to make out a prima facie case of harassment. She did
not establish by a preponderance of the evidence, as applicable, that
some of the alleged incidents of harassment did not occur, and failed to
prove the Agency officials were motivated by her race or sex, as opposed
to addressing her conduct.
An Agency Manager of Labor Relations stated that after receiving an
anonymous petition filed by employees in Complainant’s facility,
he conducted an investigation, including interviewing Complainant, who
complained that S2 spoke to her rudely and inappropriately. He stated
that S2 was issued corrective action for inappropriate conduct he
exhibited, but there was no evidence he acted inappropriately on April
13, 2009, when he sent Complainant home. The above reference witness
statement submitted by Complainant indicated S2 had anger problems,
threatened everyone on the floor, and yelled at Complainant on April
13, 2009.
We find that the record shows that S2 is short tempered, lacks tact,
and raises his voice at employees. The record does not show, however,
that S2 targets Blacks and females in this behavior. Complainant has
failed to prove discrimination.
The FAD is AFFIRMED.
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 (November 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:
February 17, 2012
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 Complainant also alleged discrimination based on disability (weight and
size – plus sized). In response to an EEOC Administrative Judge’s
order to identify what disability she was alleging, Complainant wrote
that she was not disabled, and did not tell anyone about a disability.
In an order dismissing Complainant’s request for a hearing, the AJ
observed that Complainant withdrew her disability claim. We agree.
Accordingly, we do not address the Agency’s determination on disability
discrimination which found no discrimination.
2 On appeal, Complainant does not challenge the AJ’s decision to deny
her a hearing. Accordingly, we do not address the matter.
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0120114095
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114095