Melissa A. Taylor, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0120080971 (E.E.O.C. Aug. 3, 2009)

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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