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