Julee Anderson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 20, 2009
0120091073 (E.E.O.C. Mar. 20, 2009)

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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0120091073