0120082641
12-04-2009
Latrisha M. Shaw, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Latrisha M. Shaw,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120082641
Hearing No. 440-2008-00030X
Agency No. 1J603002307
DECISION
On May 21, 2008, complainant filed an appeal from the agency's May 2,
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. The appeal is deemed timely and is accepted 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 correctly determined that complainant failed to
establish discrimination based on race, sex, and color regarding her
claim that she was physically assaulted by a co-worker and when she was
issued a letter of warning.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler, M-04, at the South Suburban Processing & Distribution
Center (P&DC) in Bedford Park, Illinois. On July 26, 2007, complainant
filed an EEO complaint alleging that she was discriminated against on the
bases of race (African-American), sex (female), and color (brown skin)
when:
(1) On or about March 27, 2007, and May 20, 2007, she was physically
assaulted by a co-worker (African-American, light-skin female) (CW); and
(2) On May 22, 2007, she was issued a Letter of Warning (LOW) charging
her with Failure to Follow Instructions in a Timely Manner.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Although complainant
initially requested a hearing on April 14, 2008, the AJ remanded the
complaint to the agency for the issuance of a final agency decision.
The AJ dismissed complainant's hearing request because of complainant's
failure to cooperate, failure to prosecute, and failure to follow the AJ's
instructions. Consequently, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
Final Agency Decision
The FAD first addressed complainant's claim that she was physically
assaulted by another Mail Handler (CW) on March 27, 2007. She stated
that she was standing in the doorway area of the opening unit and CW
intentionally ran into her with a letter tray. Complainant asserted
that the conduct must have been intentional because instead of saying,
"excuse me," CW yelled, "You better get the f**k out of my way." The FAD
also noted that complainant described a second incident that occurred on
May 20, 2007. She stated that she was working in the opening unit when CW
pushed approximately 8-10 empty All Purpose Carts (APCs) of letters toward
complainant. Complainant claimed that she might have been struck by the
APCs, were it not for a co-worker telling her to move out of the way.
She did not assert that she was physically touched during this incident.
The FAD found that the record evidence failed to show that CW intended
to bump into complainant on March 27, 2007. Additionally, the FAD found
no evidence that the alleged conduct, taken together, was motivated
by complainant's membership in any protected group, or was severe or
pervasive enough to be considered unlawful harassment. Finally, the
FAD found that complainant did not show a basis for imputing liability
to the agency given that the agency acted swiftly and appropriately in
issuing a Seven-day suspension1 to CW for her conduct.
As to issue (2), the FAD noted that complainant testified that she was
issued a LOW by her Manager (M1) on May 22, 2007. According to the LOW,
M1 instructed complainant on April 26, 2007, to help clear the mail volume
that had accumulated from the doorway to the dock area. Complainant
refused to comply due to concerns that CW would be in the same work area.
M1 warned complainant that her conduct could result in disciplinary
action, but complainant continued to disobey the instruction.
The FAD found that complainant did not establish a prima facie case of
discrimination as she did not show that she was treated less favorably
than similarly situated individuals outside her protected classes.
The FAD also noted that the circumstances surrounding management's
decision to issue the LOW did not give rise to an inference of unlawful
discrimination. The FAD then found that the agency articulated a
legitimate, nondiscriminatory reason for its action. Specifically,
management issued the LOW to complainant because she refused to follow
direct instructions to help clear the doorway of mail before the
oncoming tour started. Noting that both of complainant's supervisors
are African-American females, the FAD concluded that the record fails to
indicate that the agency's articulated reason is most likely a pretext
for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant focuses on the basis of color discrimination,
stating "complainant contends that she was discriminated against because
of color when the US Postal Service refused to remove the complainant
from an explosive and dangerous work environment." She additionally
asserts that "the fact that [CW] is a Union Steward [who] works hand and
glove with management is one of the reasons that management discriminated
against me and allowed me to remain in harm's way." Complainant states
that she "fears for her life." The agency asks the Commission to affirm
its final order.
ANALYSIS AND FINDINGS
Initially, we note that complainant does not, on appeal, specifically
challenge the AJ's decision to cancel the hearing, and therefore,
we shall not address this matter herein. 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").
Harassment
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a claim of hostile work environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2) s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. Assuming
the conduct in question was severe or pervasive enough, complainant has
failed to establish, based on this record, that her race, sex or color
motivated CW's behavior. We note that we do not have the benefit of an
AJ's findings after a hearing, and can only evaluate the facts based on
the weight of the evidence presented to us.
Letter of Warning
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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).
Here, assuming complainant could establish a prima facie case of
discrimination based on race, sex or color, the agency has articulated a
legitimate, nondiscriminatory reason for issuing the LOW. Specifically,
it is undisputed that complainant failed to follow management's
instructions on the date in question. Based on this record, complainant
has not met her burden of establishing pretext. Although she expressed
a specific reason for not wanting to follow the instructions (her own
safety), this record does not indicate that because of complainant's
race, color and/or sex, she was asked to do work in an environment that
was tainted by discriminatory harassment, and then was disciplined for
not doing the work because of her membership in these protected groups.
In so finding, we note that complainant's assertion that CW was treated
more favorably due to being a Union Steward undermines her argument that
management acted based on a discriminatory motivation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
______12/04/09____________
Date
1 The FAD notes that CW's Suspension was subsequently reduced to a Letter
of Warning.
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0120082641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082641