Linda F. Gray, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 16, 2009
0120083325 (E.E.O.C. Jan. 16, 2009)

0120083325

01-16-2009

Linda F. Gray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Linda F. Gray,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083325

Agency No. 1H-302-0042-07

Hearing No. 410-2008-00130X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 9, 2008 final order 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. Complainant alleged that the agency

discriminated against her on the bases of race (African-American), sex

(female), and reprisal for prior protected EEO activity under Title VII

of the Civil Rights Act of 1964 when she was subjected to a hostile work

environment when:

1. On June 7, 2007, she was placed on Emergency Placement in an

Off-Duty Status; and

2. On June 21, 2007, she was informed that she was being removed from

her position as Plant Manager to the position of Manager, Distribution

Operation at the North Metro facility.

The record reveals that complainant was an EAS-24 Plant Manger at

the agency's Airport Mail Center (AMC). That facility contained an

automated high-tech mail processing machine called an Automated Package

Processing System (APPS).1 Complainant was the only Plant Manager within

the Atlanta District who had this kind of machine in her facility.

On or around May 17, 2007, an audit revealed that the APPS machine was

not being properly operated or maintained. The results were forwarded

to management and three levels of management contacted complainant's

supervisor regarding these problems. Technical representatives from the

machine's manufacturer were brought in to help assess the problems with

the machine. On June 7, 2007, complainant's supervisor, the Senior Plant

Manager (SPM) relieved complainant and the Maintenance Manager of their

duties at the AMC.

The SPM temporarily placed complainant into a non-duty status, with pay,

until he could find an appropriate temporary assignment for her outside

the AMC. A temporary position was found for complainant, and she was

directed to report back to duty effective June 21, 2007.

On December 5, 2007, the Atlanta District Manager issued a disciplinary

Decision concerning complainant's unsatisfactory performance with respect

to the APPS machine. He officially reassigned complainant form her level

EAS-24 Plant Manager position at the AMC to a level EAS-24 Manager of

Distribution Operations position at the North Metro facility.

Complainant filed the instant EEO complaint in response to this action.

She maintained that the SPM discriminated against her on the bases

of race and sex when he took her out of her Plant Manager position in

June 2007. She also alleged a hostile work environment existed in the

Atlanta District toward its African-American female managers.2 Finally,

she alleged that SPM took her out of her Plant Manager's position because

she engaged in protected activity on May 28, 2007.

On appeal, complainant contends that an audit showed that the SPM's

plant had the same deficiencies that her plant had and yet he was

not reassigned. Complainant also contends that she continues to be

retaliated against because with her new position she is required to

drive 76 additional miles each day to get to the North Metro P&DC.3

Following an investigation by the agency, complainant requested a

hearing before an EEOC Administrative Judge (AJ). The AJ issued a

decision finding no discrimination. 4 The AJ found that complainant

failed to establish a prima facie case of discrimination as to any

of her bases but assuming that she had, the agency had articulated

a legitimate nondiscriminatory reason for its action. Specifically,

the agency maintained that complainant was removed from her position to

ensure that the operational and maintenance problems for the APPS machine

would be corrected. Moreover, the agency maintained that complainant

was removed from her position because she was the Plant Manager when

the problems and damage to the machine occurred. The agency indicated

that a mechanical breakdown of the machine would have seriously harmed

the efficiency of the mail service. Additionally, the agency maintained

that complainant did not initiate her protected activity until May 28,

2007, which was after the discovery of the problems with the machine

and after the complaints from the high level supervisors. The agency

also maintained that complainant could not show that she was subjected

to a hostile environment because there was no evidence that any action

was taken because of a prohibited factor. The AJ found that complainant

failed to show that its articulated legitimate nondiscriminatory reason

was pretext for 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 order.

The Commission finds that the Administrative Judge's issuance of a

decision without a hearing was appropriate because no material facts were

found to be at issue. Further, we agree that even if we assume arguendo

that complainant established a prima facie case of discrimination as to

all bases, the agency articulated legitimate nondiscriminatory reasons

for its actions, namely, that complainant was placed in to a non-duty

status and was removed from her position because of serious maintenance

deficiencies with respect to the APPS machine. The agency indicated that

had the APPS machine stopped working it would have severely harmed the

efficiency of the mail service.

In addition, with respect to complainant's claim that she was subjected to

a hostile work environment, we find that complainant has not established

that the incidents complained of were sufficiently severe or pervasive as

to create a hostile work environment. The evidence shows that complainant

was subjected to discipline because of the condition of the APPS machine.

We find the evidence supports that reassigning complainant from her

position was a business decision related to the efficiency of the mail

service and was not motivated by unlawful discriminatory animus.

Further, with respect to complainant's contentions on appeal, the record

shows that complainant's plant is not substantially similar to the plants

under SPM's control because she was the only one in the area with the

APPS machine while the other plants contained mail sorting machines.5

Finally, we find that complainant has not demonstrated that the agency's

legitimate nondiscriminatory reasons were pretext for discrimination.

Accordingly, the Commission finds that the record evidence does not

establish that discrimination occurred. Therefore, the agency's final

action is finding no discrimination is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (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

January 16, 2009

__________________

Date

1 The APPS machine was used to sort Priority Mail, and it was the only

such machine in the District. The machine had an enormous production

capacity, and the managers, believed that a mechanical breakdown of this

machine would have devastating consequences on the mail service.

2 The record reveals that complainant's position was filled by an

African-American female. Further, 90% of the supervisors and managers

within the Atlanta District are African-American. About 75% of

the current Plant Managers are African-American females. The current

highest level Executive in the Atlanta District, the District Manager,

is now an African-American female.

3 With respect to complainant's claim of continued retaliation, she is

advised to contact her EEO office concerning that matter.

4 The AJ granted the agency's Motion for Summary Judgment and

incorporated the Motion into her decision.

5 The record shows that the primary mail sorting machine in the Atlanta

and North Metro area is the Delivery Bar Code Sorter (DBCS). There are

approximately 35 DBCS's as opposed to one APPS. It takes 2 employees

to operate a DBCS but 20 to 40 to operate an APPS. Consequently, the

mechanical failure of the APPS machine, due to insufficient preventive

maintenance, is a much more serious concern than the similar failure of

a single DBCS machine.

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0120083325

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120083325