0120100544
08-03-2012
Johnnye M. Stewart, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Johnnye M. Stewart,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120100544
Hearing No. 460-2009-00110X
Agency No. 4G-770-0397-08
DECISION
On November 12, 2009, Complainant filed an appeal from the Agency's October 16, 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
Whether the Agency erred in finding that it did not subject Complainant to hostile work environment harassment on the bases of race (African-American) or in reprisal for engaging in prior EEO activity.
BACKGROUND
Complainant worked as a Carrier Technician at the Katy Post Office in Katy, Texas. In various correspondences, Complainant alleged that a supervisor of customer services and the facility's Postmaster harassed her because of her race (African American) and reprisal for prior EEO activity. Generally, she maintained that her supervisor unduly scrutinized her work on a daily basis and often made condescending or insulting comments. For example, in March 2008, the supervisor allegedly told Complainant that she had a problem following instructions, and later asked why Complainant had something against her when Complainant did not look at the supervisor after she had said hello. Another time, the supervisor allegedly did not answer one of Complainant's questions seeking clarification, and instead responded, "That takes common sense."
Complainant alleges that on July 23, 2008, she was assigned to deliver mail on a specific route, according to a written schedule. But then the customer services supervisor verbally reassigned her to another route and reminded her of the change by announcing it over the public address system. Complainant felt the supervisor had deliberately switched her route as a favor for another employee who wanted Complainant's route, and then disrespected and humiliated her by publicly announcing the change over the public address system.
Later that day, Complainant was wearing a headset when the customer services supervisor approached her and asked her a question. Complainant felt that the supervisor was trying to start an argument, so Complainant remained silent. The supervisor asked someone to get Complainant's attention since she was wearing a headset, and the supervisor persisted in talking to Complainant. Complainant, in turn, persisted in remaining silent. Because of Complainant's non-responsiveness to her inquiries, the supervisor sent her home for being insubordinate.
The next day, an Agency official left a voice message on Complainant's cell phone, informing her to return to work on July 25. Complainant did not return to work on that date. To explain her absence, Complainant stated that she did not receive the Agency official's cell phone message until July 26, because she lived in a rural area with weak cell phone reception. According to Complainant, this Agency official knew "some time ago" that the best way to reach her was to call her landline home phone number, not her cell phone number.
Complainant returned to work on July 28, 2008, and learned that the Agency would not pay her for the missed work hours on July 23,1 24,2 25,3 and 26.4 Complainant felt that the Agency should pay her for the time she was absent, because her absence was initially caused by the supervisor who discriminatorily sent her home on July 23, 2008, and then prolonged by an Agency official who knowingly chose a defective means of communicating her July 25 return-to-work date.
During the morning of July 28, Complainant felt that the supervisor micromanaged her by going through her mail and rearranging things so that it was out of order, thereby preventing her from efficiently delivering the mail. Moreover, while going through her mail, the supervisor placed a mail tray down on the floor, which, according to Complainant, could have caused her to "slip backwards" if she had been less careful or aware of the supervisor's actions.
Complainant also maintains that the Postmaster of the facility abused his authority at times by threatening and intimidating her. For example, on October 28, 2008, the Postmaster allegedly told Complainant that her freedom of speech began when she was off the clock. Then on November 4, 2008, he placed Complainant in an off-duty status for allegedly raising her voice and failing to follow instructions, actions that Complainant denied doing.
Then in December 2008, the Agency at first issued a letter of warning for unauthorized overtime and then suspended her. In January 2009, the Agency charged her with being absent without leave on January 5, 2009.
Complainant filed an EEO complaint, alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on July 23, 2008, she was moved from her assigned route and subsequently sent home;
2. on July 24, 2008, she was charged Leave without Pay and missed 2 hours overtime;
3. on July 25, 2008, she was charged with being Absent without Official Leave and missed 2 hours of overtime;
4. on July 26, 2008, she was not given the opportunity to complete a PS Form 3971 (Request for or Notification of Absence), no paid properly, and missed 2 hours overtime;
5. on various dates, she was subjected to verbal harassment, unsafe work environment, and threats from the Supervisor;
6. on November 4, 2008, she was placed in an off-duty status;
7. on December 1, 2008, she was issued a Letter of Warning for unauthorized overtime;
8. On December 3, 2008, she was issued a Notice of Suspension 14-Days or Less for unauthorized overtime;
9. on January 6, 2009, she was made aware that she was charged with being Absent without leave for January 5, 2009.
The Agency dismissed claims (7) and (8) for failing to timely contact an EEO counselor.5 The Agency reasoned that the letter of warning and suspension were discrete acts, and required Complainant to contact an EEO counselor within 45 days of those actions. But because she did not contact an EEO counselor about those actions until January 26, 2009, she untimely raised those issues.
After the Agency finished the investigation, it gave Complainant a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request as a sanction against Complainant, after Complainant did not submit a pre-hearing report.6 The AJ remanded the case back to the Agency, which issued a final decision that found no hostile work environment harassment on the basis of race or reprisal.
The Agency found that Agency officials articulated legitimate, non-discriminatory reasons for their actions, and Complainant did not sufficiently show that those reasons were pretexts to mask discriminatory or retaliatory motives. The Agency maintained that management's business decisions cannot be found discriminatory simply because it appeared that managers acted unwisely, or that the managers' decisions were in error or misjudgment. The final decision determined that many of the incidents were motivated by labor-management conflicts (Complainant was a union steward) rather than Complainant's race or prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there were no legitimate justifications for many of the adverse actions taken against her, or that management did not adhere to established Postal Service procedures in placing her in off-duty status or disciplining her. She maintains that her supervisor "has a problem relating to people and more than one person is in agreement with that observation." As for the Postmaster of the facility, Complainant contends that he has a reputation of being a racist, based on prior complaints filed by other individuals.
Complainant believes that many of her actions that management has construed as being insubordinate (such as not responding to her supervisor's questions) were reasonable ways to cope or to avoid exacerbating the bullying and abusive behavior of management.
ANALYSIS AND FINDINGS
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
To establish hostile work environment harassment by a supervisor, Complainant must show five things. First, Complainant must be a member of a statutorily protected class. Second, the supervisor engaged in unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on Complainant's statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
As noted above, to sustain a claim of harassment under Title VII, the harassment must be based on a protected class. Upon review of the record, we find that Complainant did not sufficiently show that the conduct complained of was based on either her race or in reprisal for prior EEO activity.
While the record strongly suggests that Complainant and the Agency officials had a contentious working relationship, the Commission notes that Title VII is not a civility code. In her various statements and correspondence about her supervisor, Complainant maintained that the supervisor "has a problem relating to people." Based on Complainant's descriptions of her personal interactions with the supervisor, we find it more likely than not that the supervisor's conduct was based on a general hostility or negative attitude towards employees, rather than Complainant's race or prior EEO activity. We are not persuaded by Complainant's assertion that her supervisor, who was an African American woman, harassed Complainant, who was also an African American woman, in order to carry out the discriminatory intent of the Postmaster of the facility, when Complainant simultaneously asserts that her supervisor had filed a discrimination claim against the Postmaster.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because a preponderance of the record evidence does not establish that discrimination occurred.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__8/3/12________________
Date
1 On this date, the Agency placed her "off the clock" after it sent her home.
2 The Agency placed her on leave without pay for this date.
3 The Agency charged her with being absent without leave for this date.
4 According to Complainant, the Agency did not give her a form (USPS Form 3971) to fill out to request an absence for this date.
5 Complainant does not contest the dismissal of these claims on appeal. Accordingly, we shall not address them here.
6 On appeal, Complainant did not contest the AJ's decision to sanction her by dismissing her hearing request. Accordingly, we shall not address the appropriateness of the sanction here.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100544