0120091073
03-20-2009
Julee Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Julee Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091073
Agency No. 1C451004507
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 29, 2008 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.
At the time of the events at issue, complainant was employed by the
agency as a Casual employee, Grade 7, at the Cincinnati Processing and
Distribution Center. Complainant alleged that the agency discriminated
against her on the basis of sex (female) when: she was subjected to
ongoing sexual harassment by a male supervisor; her acting supervisor
harassed her with respect to clock rings and not being permitted to
go outside; and on July 11, 2007, she was given the choice of being
terminated or resigning (she chose to resign), and was not recommended
for re-hire.
The agency accepted the complaint for investigation, and complainant
requested a hearing before an EEOC administrative judge (AJ). However,
the AJ subsequently remanded the complaint back to the agency for
a decision without a hearing finding complainant failed to comply,
without good cause, with a status conference and pre-hearing order.1
By final decision dated October 29, 2008, the agency issued a decision
on the merits of the complaint based on the evidence gathered during
the investigation concluding no discrimination was proved. The instant
appeal followed.
During the investigation into her claim, complainant stated that in June
2007, she was sometimes sent to the third floor to help out on the DBCS
machines. She alleged that the male supervisor in that area sexually
harassed her. Specifically, she stated that on an unidentified date
in June 2007, he asked her what she was doing that night. She said she
laughed at him and walked away. She did not allege that he ever asked
her out again. However, complainant claimed that the supervisor continued
to stare at her on a number of occasions, but could not provide specific
times or dates. Further, complainant stated that he watched her go into
the rest room and paged her. The supervisor denied the assertions. The
Commission notes that complainant did not report these incidents to
anyone until after she left the agency.
With respect to the alleged harassment by an acting supervisor (female),
complainant asserts she and another employee were told that they could
not go outside, and that the supervisor told her father (who was also an
agency employee) things about her that were not true - about clocking in
and out for lunch, and leaving early. Further, complainant states this
supervisor assigned her to work on the same floor as the male supervisor
who harassed her. When complainant was asked why she felt her gender
was a factor with respect to the claimed harassment, complainant stated
it was because she was more attractive than the acting supervisor.
The supervisor averred that she applied the same rules to both male and
female casual employees.
Finally, complainant and a coworker (male) were given the option of
resigning or being terminated for poor performance and failure to
follow instructions. Both employees opted to resign. The supervisor
(female) responsible for the termination decision stated she proposed
terminating the two employees because of ongoing poor work performance
and failure to follow workplace rules such as failure to punch the time
clock appropriately. She also stated that she did not recommend them
for re-hire for the same reasons when they opted to resign in lieu of
termination.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 Construction
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 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In its decision, the agency concluded that there was insufficient evidence
to support a finding that the alleged harassment was sufficiently severe
or pervasive to alter complainant's working conditions. The agency
noted that the male supervisor denied ever asking complainant out or
staring at her, and stated that he did not know complainant by name and
never talked to her. It was also noted that complainant did not allege
that the supervisor ever asked her out again. The agency considered
that complainant did not report any harassment while she was employed,
and did not cooperate in the investigation of her claims of harassment
that was undertaken when her allegations of sexual harassment came to
the attention of management after her resignation. With respect to her
other allegations concerning time clock issues, going outside, and her
resignation in lieu of termination, the final decision concluded that
complainant failed to establish, by a preponderance of the evidence,
that the reasons proffered for the agency's actions were a pretext for
gender discrimination.
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 the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 20, 2009
__________________
Date
1 On appeal, complainant has not challenged the AJ's sanction decision.
Therefore, we will not address this issue further in this decision.
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0120091073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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