0120083135
12-04-2009
Mural L. Weddle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Mural L. Weddle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120083135
Hearing No. 471-2008-00042X
Agency No. 1J483004407
DECISION
On June 27, 2008, complainant filed an appeal from the agency's May 27,
2008 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 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.
ISSUE PRESENTED
Whether complainant met her burden of establishing that she was subjected
to sex-based discrimination and/or retaliation when she was treated
disparately and subjected to intimidation from her supervisor (S1).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a full-time Parcel Post Distribution-Machine Operator1, PS-05, at the
Detroit Priority Mail Facility, in Romulus, Michigan. On August 22, 2007,
complainant filed an EEO complaint alleging that she was discriminated
against and intentionally subjected to discriminatory harassment based
on sex (female),2 since February 15, 2007, including:
(1) being intimidated;3 and being bypassed for preferential
assignments by males with less seniority.
Complainant subsequently amended her complaint by alleging that she was
subjected to discrimination based on sex and reprisal [arising under
Title VII] when:
(2) since on or about July 29, 2007, she has been denied higher
level pay for higher level work she performed.4
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 that request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision
The FAD noted as to issue (1), that complainant testified that,
on February 15, 2007, S1 wanted another employee (E1) to key on the
faster machine (instead of complainant), because E1 keyed faster than
complainant. Complainant averred that she declined to change places with
E1 because she was in her normal rotation and the machine E1 was on was
a slower machine. Complainant testified that S1 became upset and, when
the machine was out of mail, he informed all Clerks to report to him for
a meeting. Again, on February 16, 2007, complainant maintained that S1
worked her out of rotation; and she was placed on the same slower machine.
Complainant avowed that she filed a grievance, and that S1 signed the
grievance settlement; however, he has not complied with the settlement.
As to issue (2), complainant alleged that when she was a transfer clerk in
May 2007, she was not given higher level (PS-06) pay. She disclosed that,
since filing this complaint, she worked higher level on May 31, 2007, June
13, 2007, July 4, 18, 25, 2007; August 1, 2, 8, 10, 17, 22, 30, and 31,
2007; as well as on September 10, 12, and September 19, 2007. However,
she was paid higher level for only 32 hours. Complainant testified that
she filed a grievance, and this grievance was also signed by S1.
The FAD initially noted that to the extent that complainant expressed
dissatisfaction with the fact that settlements reached through the
grievance process, regarding work assignments, seniority, and higher
level pay, were violated by management, such allegations constitute
collateral attacks on the outcome of another administrative dispute
resolution process, and should be dismissed.
The FAD then found that assuming complainant stated a claim, she did
not establish a prima facie case of retaliation or discrimination on
the alleged bases. The FAD also found that the agency additionally
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S1 stated he was aware of complainant's interest in being
considered for preferential assignments; however, in an effort to save
money, he utilized qualified, Level PS-06, "saved grade employees"
who had the most seniority. S1 stated that he explained to complainant
why she was not considered for the preferential assignments, however,
she was not satisfied with his explanation.
The FAD further found that S1 stated that he never denied complainant
higher level pay. S1 stated that initially complainant reported to
another supervisor and had requested her prior supervisor to input
her time. S1 maintained that, if higher level pay was not inputed at
the time complainant performed the higher level work, it was done when
S1 was notified. Complainant filed a grievance relative to the higher
level pay, and she was paid for the hours she worked at the higher level.
The FAD found no evidence of pretext in the record, and concluded that
complainant failed to prove that she was subjected to discrimination as
alleged.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates arguments previously made, including
that the agency has violated grievance settlements. She contends that
she should have been paid at a higher level due to her seniority, but she
was never paid at a level 6, only a level 5. Moreover, S1 placed E1,
who had less seniority, on the faster machine in the facility rather
than complainant, based on an unfounded assertion that E1 types faster
than complainant. Additionally, complainant states for the first time
on appeal (and without specificity) that S1 whispered in her ear words
that implied he would "get back at" her.
In reply, the agency contends that the FAD was correct, noting initially
that in her complaint, complainant raised claims that are collateral
attacks on the results of the grievance process. The agency emphasizes
that S1 gave certain male employees preferential assignments because they
were at a higher PS-level than complainant, namely, PS-6. Additionally,
with respect to complainant's allegation that she was denied higher
level pay, the agency notes that S1 stated that if higher level pay was
not inputed at the time complainant performed the higher level pay,
it was done when S1 was notified. The agency asks the Commission to
affirm the FAD.
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").
Initially, we agree that any claim that a settlement agreement (negotiated
through the grievance process) was breached, constitutes a collateral
attack, over which the Commission lacks jurisdiction. The Commission
has held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993).
We shall assume however, that complainant has also raised claims of
discrimination concerning discrimination in assignments and wages, that
are within the Commission's jurisdiction. 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). 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. 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).
Assuming complainant can establish a prima facie case of sex
discrimination, the agency has articulated legitimate, nondiscriminatory
reasons for its actions. The agency asserts that certain male employees
were given preferential assignments because they were PS-6s, and doing
so (instead of paying a PS-5 like complainant PS-6 wages) saved the
agency money. Complainant contends that she has more seniority, but has
not disproved that the male employees who were given the preferential
assignments were at a higher PS level than she. Additionally, the agency
stated that E1 was faster at keying than complainant, and although
complainant calls this "unfounded" she has not shown that management
did not believe this to be the case. Complainant states that when she
complained about not getting preferential assignments, she was told that
it was "water under the bridge" and she notes that she does not know
what that means. The Commission finds that complainant has simply not
shown that discriminatory animus was a factor in management's actions.
In a related matter, identified as issue (2), complainant asserted that
she was not paid at a PS-6 level when she did PS-6 work. S1 indicated
that if or when that occurred, complainant was paid once he was notified
about the error. S1 further noted that complainant has actually been paid
at a higher level on a day that she was not on a higher level assignment,
in order to comply with a settlement. Even assuming complainant was
sometimes not paid at the correct PS level, complainant has not persuaded
the Commission by a preponderance of the evidence, that any failure to
pay, or delay in paying complainant the proper wages, was because of
management's sex-based or retaliatory animus. In so finding, we note
that we do not have the benefit of an AJ's findings after a hearing,
and can only evaluate the facts based on the weight of the evidence
presented to us.
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 to the employer. 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. EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 6 (March 8, 1994). Here, complainant has not shown
that S1's conduct was based on her membership in a protected group,
nor that it was severe or pervasive enough to be considered unlawful.5
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
_________12/04/09_________
Date
1 Complainant referred to her position as a Small Parcel Bundle Sorter
(SBPS) Clerk.
2 It appears that during the investigation, complainant stated or implied
that age was also an alleged basis of discrimination, however, on appeal,
she states that she did not intend to raise the basis of age, and
therefore, we will not address the basis of age in this decision herein.
3 Complainant asserts that her supervisor initiated a confrontation in
which he looked at her in a mean/evil way, with his hands "balled up,"
and told her to "do some work!;" and he stated that,"If it don't pretain
[sic] to you just do your work."
4 We note that complainant did not specifically allege a violation of
the Equal Pay Act.
5 We note that we cannot consider alleged incidents, such as S1 whispering
in complainant's ear words that implied that he would "get back at"
her, that were not raised before the appellate stage of processing.
Complainant may seek EEO counseling concerning any new incidents which
she believes to be retaliatory or discriminatory.
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0120083135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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