Melvon A. McMillan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Capital Area), Agency.

Equal Employment Opportunity CommissionNov 27, 2009
0120073295 (E.E.O.C. Nov. 27, 2009)

0120073295

11-27-2009

Melvon A. McMillan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Area), Agency.


Melvon A. McMillan,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Capital Area),

Agency.

Appeal No. 0120073295

Agency No. 1K-231-0001-07

DECISION

On July 19, 2007, complainant filed an appeal from the agency's December

18, 2006 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Equal Pay Act of 1963,

as amended, 29 U.S.C. � 206(d) 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.

ISSUES PRESENTED

1. Whether the agency properly dismissed four of complainant's

discrimination claims on procedural bases.

2. Whether complainant properly requested a hearing with an EEOC

Administrative Judge (AJ).

3. Whether the agency properly found that complainant was not subjected

to unlawful discrimination or reprisal.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Level 4 Data Conversion Technician at the agency's facility in

Richmond, Virginia.

On November 4, 2006, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of race (African-American),

sex (female), religion (Catholic), disability (stress), and in reprisal

for prior protected EEO activity under when:

1. Before May, 2006, management ridiculed her about her religion

and religious beliefs;

2. On May 30, 2006, management instructed her to work outside of

her restrictions;

3. On September, 2006 through October 29, 2006, she was overlooked

for upward mobility and denied higher level pay when performing duties

in a higher level capacity;

4. On September 29, 2006, she received notification that her position

had been abolished;

5. In January, 2006, management questioned her as to why she wanted

to be a foster parent;

6. In April, 2006, her change of schedule was discontinued/denied;

7. On June 23, 2006, September 14, 22, and 26, 2006, and numerous

other times, her time and activities were monitored; and,

8. From October 4, 2006 to the present, she has been out of work

due to stress and her medical information has been shared

with other employees.

In a letter dated December 18, 2008, the agency dismissed claims 1 and 2

on the grounds that they were initiated by untimely EEO counselor contact

and claims 5- 7 on the grounds that complainant raised these matters

during counseling but did not include them in her formal complaint.

The agency accepted claims 3, 4, and 8 for investigation.

In an investigative affidavit, complainant stated that she was overlooked

for upward mobility when additional staffing was needed in In-Plant

Support, and management went on the work floor to recruit clerks with less

seniority and experience in In-Plant Support than she had. Complainant

stated that she asked the Manager for opportunities for upward mobility

and raised her hand in staff meetings when the Manager asked if anyone

was interested in opportunities. Complainant further stated that she

told the Manager that it was a good time for her to learn other duties

and also requested the opportunity to work with the Manager's secretary

because the Manager stated that her secretary needed help. Complainant

stated that when she would ask about opportunities for upward mobility,

the Manager would state that she was busy and did not have time to talk

with employees about upward mobility.

Complainant maintained that she worked as a data technician, inputting

mail volume from all operations that did not come automatically from

the main building and sub-facilities. She stated that she was paid for

four hours a day at Level 6 for these duties because her supervisor

said that it did not take complainant all day to complete these duties.

Complainant indicated that her pay level had been increased from Level

4 to Level 6 for four hours a day because of these duties. Complainant

stated that data technician work requires eight hours of work per day

because it involves steady work all day. According to complainant,

in August and September 2006, she also worked on the renovation of the

main conference room, which is a Level 19 industrial engineer job.

Additionally, complainant stated that she compiled, completed, and

submitted holiday plans for the year, which is a project that usually

is performed by Level 17 to 20 employees. She stated that the Manager

assigned her this task. Complainant further stated that, although

no vacancy announcements were posted, management would often inform

them that new employees were coming in on details to assist the office.

These employees, according to complainant, were given opportunities that

she was not provided.

Complainant also alleged that in a staff meeting, her Manager stated that

she was cutting jobs. Complainant stated that her position was abolished

on December 28, 2006, and that no other position was abolished in the

department. She stated that two co-workers told her that the Manager

abolished her job because she asked for a higher level position.

Complainant further stated that she last worked on October 3, 2006, is

under her physician's care, and will not return to work until "further

notice." She stated that she has been on continued sick leave, annual

leave, and leave without pay since October 3, 2006. Complainant further

alleged that the secretary shared her medical information with other

employees when she came to the In-Plant office and told a co-worker,

"[Complainant] is out on stress. I guess all of you are going out

on stress." Affidavit A, p. 4.

The Manager stated that when she initially became Manager of In-Plant

Support in August 2006, complainant informed her that she would like

to be trained in other positions for upward mobility. She stated that

complainant has not been overlooked for upward mobility and has been

offered opportunities on many occasions, including the opportunity to work

as a Level 5 General Clerk and a Level 6 Data Collection Technician. She

further stated that complainant informed her that she would not be able to

handle the workload of a General Clerk and did not want to work on Tour

3 as a Data Collection Technician. The Manager stated that complainant

was paid higher level pay for an average of two to six hours per day,

depending on the work load, and her workload was increased to Level 6

to reflect her work as a Data Collection Technician.

The Manager stated that she abolished complainant's position because

there was not enough workload available at Level 4. The Manager stated

that complainant was the only Level 4 Data Collection Technician in the

unit, which is why only her position was abolished. The Manager further

stated that complainant's new assignment was as a Level 5 General Clerk,

but she never reported for duty

The record contains a copy of her letter to complainant dated

September 28, 2006, in which the Manager informed complainant that

her bid assignment would be abolished on October 27, 2006, because of

technological advances in agency business systems and decreased data

input workload. The letter further stated that complainant would become

an unassigned regular effective October 28, 2006, and was encouraged to

bid on posted duty assignments. Additionally, the letter stated that if

complainant did not successfully bid on a position, she would be assigned

to a residual General Clerk position effective October 28, 2006.

The Manager denied sharing complainant's medical information with

anyone, and the Secretary stated that she did not have any knowledge of

complainant's medical information and was not aware of ever sharing any

medical information about complainant.

At the conclusion of the investigation of the accepted claims, 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).

When complainant did not request a hearing within the time frame provided

in 29 C.F.R. � 1614.108(f), 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 because she

did not establish a prima facie case of discrimination on any of the

alleged bases and did not prove that the agency's non-discriminatory

explanations were pretext for unlawful discrimination. The agency

further found that the alleged actions were not severe or pervasive

enough to constitute a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency improperly dismissed five

claims on procedural grounds. Complainant further argues that the agency

improperly denied her request for a hearing with an AJ. Complainant also

contends that she performed work at a higher level than she was paid,

including renovating a conference room for over one month in August

and September 2006 and compiling holiday plans. Complainant further

argues that a white male mail processor was paid more and promoted to

a higher level. Finally, complainant withdrew her claim that she was

subjected to reprisal.

ANALYSIS AND FINDINGS

Partial Dismissals

The agency dismissed claims 1 and 2 on the basis that they were initiated

by untimely EEO counselor contact and claims 5 - 7 on the basis that

complainant raised these matters during counseling but did not include

them in her formal complaint.

Upon review, we note that in her formal complaint, complainant

identified specific agency actions that she believed created a hostile

work environment. In that statement, complainant solely focused on

the denial of opportunities for upward mobility, the promotion of a

white male employee ahead of her, the abolishment of her position,

the wearing of short sleeve shirts and the discussion regarding casing

of DPS mail and marriage cards. Complainant failed to include other

events that she previously raised with the EEO Counselor. Therefore,

we agree with the agency that complainant abandoned claims 5, 6, and 7

because they were not raised in her formal complaint. See Lisa S. Farmer

v. United States Postal Service, Appeal No. 0120062013 (June 13, 2006)

(Commission found complainant abandoned matters raised to EEO Counselor as

part of hostile work environment claim that were not included in formal

complaint). Moreover, although the agency dismissed claims 1 and 2 on

the grounds that they were initiated by untimely EEO counselor contact,

we find that these matters are also more appropriately dismissed on the

grounds that complainant did not raise them in her formal complaint and

thus abandoned them. Consequently, we affirm the agency's dismissal of

claims 1, 2, 5, 6, and 7 for the reasons set forth in this decision.

Right to a Hearing

Complainant contends that the agency improperly denied her request for a

hearing with an AJ. Complainant maintains that she requested a hearing

on January 29, 2007 in her Response to the Partial Acceptance/Partial

Dismissal of Formal EEO Complaint. Complainant stated that, "Though this

is not the 30-day response after the investigative report, it has been

known from the beginning that the complainant requested a hearing and

such was noted on the record with the Agency. The Agency cannot state

that the complainant has not asked for a hearing on this matter."

Upon review, we do not find that complainant's premature request for a

hearing before the completion of the investigation was a proper request

for a hearing. EEO Regulations provide that complainants have the right

to request a hearing within 30 days after receipt of the investigative

file. 29 C.F.R. � 1614.108(f). Complainant did not request a hearing

within 30 days after she received the investigative file. Thus, we find

that the agency properly issued a final decision.

The Final Decision

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").

Harasssment and Disparate Treatment

In order to prevail in a disparate treatment claim, 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).

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).

To establish a claim of hostile environment harassment, complainant

must show that: (1) she belongs to a statutorily protected class;

(2) she 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 her statutorily protected class; (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;

and (5) there is a basis for imputing liability. See Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's 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 at 6 (March 8, 1994). Further,

the incidents must have been "sufficiently severe and pervasive to alter

the conditions of complainant's employment and create an abusive working

environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);

see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

For purposes of analysis, we assume that complainant is a

qualified individual with a disability and established a prima

facie case of discrimination. Nonetheless, we find that the agency

provided non-discriminatory explanations for its actions, as detailed

above. Complainant contends that she performed work at a higher level than

she was paid, including renovating a conference room for over one month

in August and September 2006 and compiling holiday plans. The Manager

stated that complainant renovated the conference room because she told

the Manager she was would enjoy decorating the room, but the Manager

oversaw the project. The Manager further stated that compiling data

for the holidays was a function of complainant's regular job and only

involved extracting data. Complainant also contends that a Black female

data collection technician (PS6); a white male mail processing clerk

(PS6); and a black female casual employee were detailed to assignments

for which they were granted Level 17 pay. However, complainant failed

to show that she, a Data Conversion Technician, was similarly situated

to these employees.

Further, we note that although complainant contends that a secretary

shared her medical information with a co-worker, she failed to identify

the co-worker with whom this information was purportedly shared.

The Manager and secretary denied disclosing complainant's medical

information. We are not persuaded that the Manager or secretary disclosed

complainant's medical information. We also conclude that complainant

failed to prove that the agency's non-discriminatory explanations

were pretext for unlawful discrimination. Moreover, we find that the

alleged actions were not sufficiently severe or pervasive to constitute a

hostile work environment. Thus, we find that the agency properly found

no discrimination or harassment.

Equal Pay Act

Complainant contends that she was not paid the same as a male processing

clerk, which could be viewed as an alleged violation of the Equal Pay Act.

The U.S. Supreme Court articulated the requirements for establishing a

prima facie case of discrimination under the EPA in Corning Glass Works

v. Brennan, 417 U.S. 188, 195 (1974). To establish a violation of the

EPA, a complainant must show that he or she received less pay than an

individual of the opposite sex for equal work, requiring equal skill,

effort and responsibility, under similar working conditions within the

same establishment. Id. at 195; Sheppard v. Equal Employment Opportunity

Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29

C.F.R. � 1620.14(a).

Once a complainant has met the burden of establishing a prima facie

case, an employer may avoid liability only if it can prove that the pay

difference is justified under one of the four affirmative defenses set

forth in the EPA, namely: (1) a seniority system; (2) a merit system;

(3) a system which measures earnings by quantity or quality of production

of work (also referred to an incentive or piecework system); or (4)

a differential based on any other factor other than sex. 29 U.S.C. �

206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate

Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of

"equal work" does not mean that the jobs must be identical, but only

that they must be "substantially equal." Id. (citing Corning Glass

Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706,

714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429,

449 (D.C. Cir. 1976)).

In this case, during the relevant time period, complainant was a

Level 4 Data Conversion Technician, and the male comparative employee

worked as a PS-6 mail processing clerk but received Level 17 pay.

Although complainant has demonstrated that she was paid less than the

male employee, she has not demonstrated that she performed equal work

under similar working conditions. Consequently, we find that complainant

failed to prove that the agency violated the Equal Pay Act.

CONCLUSION

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 decision

because the preponderance of the evidence of record does not establish

that discrimination or harassment 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

_____11/27/09_____________

Date

2

0120073295

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

9

0120073295