0120091909
08-31-2009
Lynne J. Bialk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lynne J. Bialk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091909
Agency No. 4J-530-0084-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 19, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Rural Carrier at the agency's Franklin Post Office in Franklin, Wisconsin.
On August 3, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her in reprisal for prior protected activity when:
(1) on April 4, 2008, she was issued a Fourteen (14) Day No Time Off Suspension; and
(2) she was given a Notice of Removal dated September 3, 2008.1
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On February 19, 2009, the agency issued the instant final decision.
In its February 19, 2009 final decision, the agency found no discrimination. The agency determined that complainant did not establish a prima facie case of reprisal discrimination. The agency further determined that complainant did not establish a prima facie case of hostile work environment harassment discrimination. The agency found that assuming, arguendo, that complainant established a prima facie case of reprisal and hostile work environment harassment discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Regarding claim (1), the Supervisor Customer Service (SCS) stated that she was the deciding official to issue complainant a Fourteen Day No Time Off Suspension for misdeliveries. The record reflects that from November 29, 2007 to March 25, 2008, the agency received seven complaints from customers concerning misdeliveries on complainant's route. SCS stated that she took the following previous disciplines into consideration before issuing the subject suspension: on July 9, 2007, complainant was issued a Letter of Warning for failure to deliver an Express Mail piece, on October 18, 2007, complainant was issued a Seven Day No-Time-Off Suspension for misdeliveries, on November 15, 2007, and complainant was issued a Fourteen Day No Time Off Suspension for driving without a seat belt and misdeliveries. SCS stated that as a result of a grievance, complainant's Seven Day No Time Off Suspension (NTOL) was reduced to a Letter of Warning and the Fourteen Day NTOL was reduced to a 7 Day suspension and "the next progressive form of discipline was a 14 day NTOL." Furthermore, SCS stated that she did not discriminate against complainant based on her prior protected activity.
The 204-Supervisor (S1) stated that she had one-on-one meetings with complainant for repeated misdeliveries. S1 further stated that she performed "two week accuracy verifications with the Complainant (i.e.. hot pink slips issued to carriers with misdelivery for specific addresses - Address Delivery Verification) to bring the misdeliveries to her attention. The manager of the apartment complex contacted the USPS regarding the Complainant's misdeliveries. I had to send complainant back out to redeliver the entire apartment box." S1 stated that there were complaints from other customers, and one customer contacted his congressman concerning the misdeliveries.
The Manager Customer Services (MCS) stated that she was the concurring official concerning complainant's Fourteen Day No Time Off Suspension. Specifically, MCS stated that she concurred with SCS's recommendation "to request progressive discipline in the form of a 14-day NTOL, as [Complainant] shown no improvement or concern for customer satisfaction, despite attempts to improve her performance in the form of address verifications and prior lesser discipline."
Regarding claim (2), MCS stated that she was the deciding official to issue complainant a Notice of Removal dated September 3, 2008. Specifically, MCS stated that on March 31, 2008, April 18, 2008, July 14, 2008 and August 12, 2008, complainant "incurred unscheduled absences. [Complainant] failed to obtain a signature or scan a priority parcel which contained Stamps on Consignment with a value of $1,680.00. It was confirmed with [named grocery store] management that they received these stamps on 8/4/08." MCS stated that SCS met with complainant and "gave her a 'day in court' to give [complainant] the opportunity to explain her behavior. [Complainant's] responses were that she was unaware attendance was 'tracked' or that it was a performance issue. She also stated that she didn't know how the stamps on consignment parcel was not scanned nor a signature obtained, as she is very aware of the need to scan and obtain a signature." MCS stated that she found complainant's responses "unacceptable." MCS stated that SCS issued a request for progressive discipline, which in complainant's case, was a Notice of Removal, and she concurred with SCS's findings.
MCS stated that as a result of complainant's grievance, the September 3, 2008 Notice of Removal was reduced to a day of reflection. MCS stated that "the intent behind a 'day of reflection' is to afford the employee a day of administrative leave to reflect on their future employment with the postal service and rededicate themselves to satisfactory work performance."
On appeal, complainant restates her claims asserting that MCS subjected her and other named rural carriers to ongoing retaliation by MCS because of their grievances.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of Title VII must be determined by looking at all of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
Complainant, on appeal, has provided a nine-page handwritten statement regarding the agency's final decision. Complainant in essence argues that the agency's actions toward her, as well as toward a "select group" of other employees, was based on the agency assessment that they are "rural trouble makers." However, our review of complainant's appellate arguments reflects that no persuasive arguments have been raised indicating any improprieties in the agency's findings.
Therefore, after a review of the record in its entirety, including consideration of all statements 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
August 31, 2009
__________________
Date
1 The record that reflects that claim (2) was later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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