0120080971
08-03-2009
Melissa A. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Melissa A. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080971
Hearing No. 410200700289X
Agency No. 4H-300-0031-07
DECISION
On December 14, 2007, complainant filed an appeal from the agency's
November 19, 2007 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Lawrenceville, Georgia Post Office.
Complainant's regular tour of duty hours are 7:00 am to 3:30 pm.
On October 21, 2006, complainant clocked in early, and when she could
not provide her supervisor with a reason why she clocked in early,
the supervisor told complainant to clock out until 7:00 am.
Agency employees may request to work without taking a lunch break by
submitting a form to their supervisor prior to going out on their route.
On October 21, 2006, complainant submitted the form for no lunch
break after she completed her route. The supervisor initially denied
complainant's request for no lunch break because the supervisor was not
able to observe whether or not complainant took lunch, and complainant
failed to follow the proper procedures for requesting no lunch break
prior to leaving for her route. Ultimately, complainant was permitted
to take no lunch break that day.
On October 26, 2006, complainant asserts that she informed her supervisor
that she would need an additional 30 minutes to complete her work that
day. Complainant alleges that her supervisor questioned her request
and marked the request as disapproved. Complainant's supervisor does
not recall denying this specific request.
On October 31, 2006, complainant requested time to meet with the union
steward. Complainant asserts that her supervisor replied, "You can have
union time when you are off my clock." The supervisor does not recall
ever denying complainant union time.
On November 1, 2006, complainant's supervisor and another supervisor
were conducting street supervision and found complainant in her truck
talking on her cell phone. The supervisors told complainant to turn off
her truck and get out, at which time her supervisor turned her car around
and pulled behind complainant. Complainant alleges that her supervisor
let off her brake allowing the car to roll forward while complainant was
bent over, resulting in the side mirror almost hitting complainant's head.
The supervisor denies trying to hit complainant with her car.
On November 3, 2006, a meeting was held with complainant, the Postmaster,
complainant's supervisor, and a union steward to discuss two Letters of
Warning the supervisor was planning to issue for complainant's use of her
cell phone and for complainant not reporting to work on October 28, 2006.
Complainant was never issued the Letters of Warning.
On December 14, 2006, complainant was consoling an upset co-worker.
Complainant's supervisor told complainant to leave the co-worker alone
and return to her case. The supervisor asserts that complainant failed
to follow her instructions. Complainant alleges that her supervisor
then yelled, screamed, cursed, and threatened her while pointing her
finger in her face. The supervisor denies yelling and screaming, but
admits to raising her voice to get complainant's attention.
On February 27, 2007, complainant filed a formal EEO complaint alleging
harassment and discrimination on the bases of race (white), color (white),
sex (female), and in reprisal for prior protected EEO activity when:
1. On October 21, 2006, her supervisor told her to clock out and wait
until 7:00 am to clock in;
2. On October 21, 2006, her "no lunch break" request was denied;
3. On October 26, 2006, her request for overtime was denied;
4. On October 31, 2006, her request to meet with her union steward was
denied;
5. On November 1, 2006, her supervisor attempted to hit her with a
vehicle while she was bent over;
6. On November 3, 2006, she was given a discussion and threatened with
discipline concerning not coming to work on October 28, 2006, and using
her cell phone; and
7. On December 14, 2006, her supervisor yelled, screamed, cursed, and
threatened her while pointing her finger in her face.
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). Complainant
timely requested a hearing but subsequently withdrew her request.
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. Specifically,
the agency found that complainant failed to establish that the agency's
legitimate, non-discriminatory reasons for its actions were pretext for
discrimination.
ANALYSIS AND FINDINGS
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). She
must generally establish a prima facie case by demonstrating that
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). 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, 143 (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).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion 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 of Title VII
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).
Here, we will assume for the sake of argument that complainant established
her prima facie cases of discrimination, as the agency articulated
legitimate, non-discriminatory reasons for its actions. Specifically,
the agency stated that complainant was told to clock out until 7:00 am
because her shift did not begin until 7:00 am. Further, complainant's
"no lunch break" was initially denied because she did not follow the
correct procedures in requesting no lunch break, and she was ultimately
permitted to take no lunch break. Complainant's supervisor does not
recall denying complainant's overtime request or denying her union time,
and denies trying to hit her with her vehicle. There was a discussion
about complainant's use of her cell phone and failure to come to work,
but that discussion never resulted in formal discipline. Finally, the
supervisor admits to raising her voice at complainant when she failed
to follow instructions.
Complainant must now establish, by a preponderance of the evidence, that
that agency's articulated legitimate, non-discriminatory reasons are
pretext for discrimination. Beyond complainant's bare assertions and
subjective beliefs, the record contains no evidence that would suggest
that the supervisor's actions more likely than not were motivated by
discriminatory animus. Further, we find that the acts were neither
severe nor pervasive enough to establish a hostile work environment.
As a result, we AFFIRM the agency's finding of no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence does not establish
that discrimination existed as alleged.
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 3, 2009
Date
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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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