0120073159
09-07-2007
Juliana Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Juliana Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073159
Agency No. 4A-110-0142-06
Hearing No. 520-2007-00205X
DECISION
Complainant filed an appeal with this Commission from the July 1, 2007
agency decision which implemented the June 1, 2007 decision of the EEOC
Administrative Judge (AJ) finding no discrimination.
Complainant, a City Carrier, alleged that the agency discriminated
against her on the bases of race (Chinese/Burmese), sex (female), and
age (D.O.B. October 2, 1963) when in June 2006 and continuing she was
subjected to harassment and her requests for assistance were denied.
After the completion of the investigation, complainant requested
a hearing. Upon the unopposed motion of the agency, the AJ issued a
decision without a hearing (summary judgment).
Complainant's affidavit and a deposition taken by agency counsel are in
the record. Complainant stated that two supervisors harassed her and
failed to give her assistance on her mail route. She stated further
that Supervisor A called her stupid in front of customers and did not
treat her with respect and dignity. She also stated that Supervisor A
always pointed her index finger at her, harassed her while observing
her delivering mail and asked her why she had not finished her route
within the allotted time. Complainant stated that Supervisors A
and B continued to yell and shout at her in front of her co-workers
and the public. She also stated that Supervisor A treated her like
a slave. Complainant stated that she was the only Asian woman in the
facility over 40 and no other carrier was treated unprofessionally.
Complainant also stated that on June 27, 2006, Supervisor B denied her
request for assistance although he gave assistance to another carrier.
She also stated that on November 28, 2006, when she asked for assistance
by filling out the required Form 3996, Supervisor B tossed the form into
the trash. Complainant also stated that on December 1, 2006, she asked
for three hours of assistance and Supervisor B disapproved her request.
In her affidavit, Supervisor A stated that complainant was the kind of
employee who did not follow instructions, constantly engaged in "waste
time" practices, and always ran over her route time. She also stated
that complainant was the kind of employee who had problems with every
supervisor and did whatever she felt like doing.
In his affidavit, Supervisor B stated that complainant never wanted
to complete her assignment and that she was the only employee in the
facility who could never complete her assignment within eight hours.
He also stated that of 10 Forms 3996 that complainant submitted,
nine were approved. Supervisor B also stated that since she returned
to work in November 2006 from a work injury, she worked only 10 days
and submitted a Form 3996 every day. Supervisor B stated further that
complainant was not given assistance because there was not enough mail to
warrant providing her with assistance or to give her overtime to complete
her route. Regarding the incident in November 2006, Supervisor B stated
that complainant filled out the Form 3996 incorrectly and he provided
her with another blank form.
Because 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).
Harassment of an employee which would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
reprisal is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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). The prima facie inquiry
may be dispensed with when 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).
Upon review, the Commission finds that the grant of summary judgment
was proper because no genuine issue of material fact exists. See 29
C.F.R. � 1614.109(g); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). Regarding complainant's
allegations that her requests for assistance on her route were denied,
the AJ noted that a Work Hour Workload Report for November 21 through
December 7, 2006, reflects that complainant was given assistance every
day except for two days and on many days the agency also gave her
office assistance. The AJ also found that complainant had not shown
that others outside her protected groups whose routes were similar to
hers were treated more favorably than she was. The AJ found further
that complainant had not shown that the supervisor's reason for denying
complainant's requests, i.e., insufficient volume, was not the real
reason for his denial. Regarding the alleged incidents of harassment,
the AJ found that complainant had not supported this allegation. The AJ
further found that even if the incidents were true, complainant had not
shown that the alleged comments were frequently made or based on her
membership in a protected class.
The Commission finds that the record does not establish that complainant
was subjected to a hostile work environment. Even assuming the existence
of a hostile work environment, complainant has not shown that she
was subjected to a hostile work environment for prohibited reasons.
The Commission also finds that complainant was not denied requests for
assistance because of her membership in a protected group. The agency
has articulated that complainant, who appeared to be the only carrier
who had difficulty completing her route in the time allotted, was given
assistance on her route and that when her request was denied, the denial
was based on mail volume insufficient to warrant providing complainant
with assistance. Complainant has failed to show that the agency's
real reason for its denial was pretext to hide unlawful discrimination.
We find further that complainant has not shown by a preponderance of the
evidence that the agency harbored discriminatory animus towards her and
intended to discriminate against her for prohibited reasons even when
we construe the evidence in the light most favorable to complainant.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency'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
September 7, 2007
__________________
Date
2
0120073159
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036