0120071062
03-26-2009
Patricia Hardy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia Hardy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071062
Hearing No. 420-2006-00119X
Agency No. 1H-351-0025-06
DECISION
On December 15, 2006, complainant filed an appeal from the agency's
November 14, 2006 final action 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked
as a Supervisor of Distribution Operations\Attendance Control Supervisor
at the agency's facility in Birmingham, Alabama.
On April 20, 2006, complainant filed an EEO complaint claiming that she
was subjected to discriminatory harassment from January 6, 2006 to March
14, 2006, and continuing on the bases of race (Black), sex (female),
and in reprisal for prior protected EEO activity under Title VII when
her supervisor:
1. Reported to the Plant Manager that complainant had taken illegal
drugs.
2. Instructed complainant to answer and return telephone calls and report
voice messages on January 13, 17, 18 and 20.
3. Told a Black custodian that she had eaten barbecue by Black people
and she liked the way they cooked barbecue and that they knew how to
cook barbecue.
4. Denied complainant's change of schedule request on February 1.
5. Sent complainant an e-mail on March 3 about her work.
6. Ordered complainant to perform a rural mail count on her off days.
7. Confronted complainant about leaving the office for 15 minutes and
not placing a sign in the window.
8. Instructed complainant to fax something.
9. Instructed complainant that she could not give Excedrin to a coworker
after eavesdropping on a conversation.
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 action pursuant to 29 C.F.R. � 1614.110(b).
The agency determined that complainant failed to prove that she was
subjected to discrimination as alleged. The agency determined that
complainant failed to establish a prima facie case of discrimination
as the evidence did not show that complainant was subjected to an
adverse employment action and, since there are no other employees in the
Attendance Control Office, no one was similarly situated. The agency
further determined that since the Supervisor is female, the inference
of sex discrimination is further diminished. Additionally, with regard
to complainant's claim of reprisal, the agency determined that there was
insufficient temporal proximity between complainant's prior EEO activity
and the issues in the instant complaint. The agency further determined
that it articulated legitimate, nondiscriminatory reasons for each of
the issues that complainant identified.
With respect to the first claim of harassment, the agency determined
that the Supervisor appropriately reported that complainant had taken
illegal drugs given that complainant took some prescription medication
from another employee on the workroom floor and shortly thereafter stated
the room was spinning and she was dizzy. As for the second claim, the
Supervisor stated that when she is out of the office she forwards her
telephone to complainant and has instructed complainant to check her
voicemail messages in her absence. The agency determined that these
instructions were appropriate and followed office and agency protocol.
As to the third claim, the Supervisor stated that when she became aware
that complainant mentioned this incident, she asked the custodian if
she had offended her. According to the Supervisor, she intended the
statement to be taken as a compliment. In terms of the fourth claim
of harassment, the Supervisor stated that complainant's request for a
change in her work schedule on February 1, 2006, was denied after she
spoke with the Plant Manager. The Supervisor asserted that many other
requests submitted by complainant for schedule changes have been approved.
With regard to the e-mail of March 3, 2006, the Supervisor stated that
the e-mail did not concern work that had not been completed, but rather
explained where to place Forms 3971 that required further action. As for
the order to perform a rural mail count on complainant's off days, the
Supervisor stated that complainant was given a choice of two options
available of when to perform the count, and when she did not make a
choice, the assignment was given to perform the count on her off day
and again in the morning on a regular work day. As for complainant not
placing a sign in her window when she left the office for 15 minutes,
the Supervisor asserted that she asked complainant for the reason she
neglected to do this, and complainant shook her head no and said nothing.
According to the Supervisor, she had to repeatedly remind complainant of
this requirement. With respect to the instruction on March 9, 2005, to
fax something, the Supervisor stated that as a normal course of business
she has occasionally asked complainant to fax documents. Finally, with
regard to the ninth claim of harassment, the Supervisor stated that she
overheard an employee at the window ask complainant for something for
pain, and that after complainant gave that employee something, she told
complainant not to give medicine to anyone, including nonprescription
medication. The Supervisor noted that agency employees are not to
dispense medications, without the supervision of medical professionals.
The agency determined that complainant failed to establish that its
explanation for the various alleged actions was pretext. The agency
stated that the record of evidence establishes that race, sex and
reprisal were not considerations in the interactions and instructions
of the Supervisor. The agency asserted that the matters at issue were
business decisions which were necessary and appropriate.
On appeal, complainant contends with regard to her claim of reprisal that
her prior EEO activity met the temporal proximity nexus. With regard to
her Supervisor's statement concerning barbecue, complainant states that
both she and the custodian were offended by the statement. Complainant
notes that she advised her superiors on October 6, 2005, that after
she filed her prior EEO complaint in August 2005, the harassment by
her Supervisor became worse. Further, complainant claims as evidence
of reprisal that her Supervisor kept numerous notes during the period
after she filed her prior EEO complaint, as the notes were made during
the period of September 12, 2005 to March 2, 2006.
In response, the agency asserts that the alleged incidents did not
unreasonably interfere with complainant's work performance. The agency
notes that except for the single comment to the custodian overheard by
complainant, there is no evidence that the actions of complainant's
Supervisor were based on complainant's protected class. The agency
maintains that the incidents did not meet the severe or pervasive criteria
of a hostile work environment. The agency also argues that complainant
failed to establish a prima facie case of reprisal based on a lack of
temporal proximity nexus as approximately four months separated her
previous EEO activity and the alleged harassment. With regard to this
statement made to the custodian, the agency asserts that statement was
not a derogatory comment, nor was it made directly to complainant.
The agency denies complainant's contention that the Supervisor's
maintenance of numerous notes subsequent to her prior EEO activity
is evidence of reprisal. The agency states that these notes merely
recorded the events that occurred between the mediation in September
2005 and March 2006.
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). He
must generally establish a prima facie case by demonstrating that
he 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, 120 S.Ct. 2097 (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).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the 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 the
statutorily protected class; and (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. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
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 (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). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
Complainant alleges that she was subjected to a hostile work environment
and harassment when from January 6, 2006 through March 14, 2006, and
continuing when she was subjected to hostile comments and actions from
her Supervisor. We find that complainant's claim of discriminatory
harassment is not supported by the record. The agency has provided a
legitimate, nondiscriminatory explanation for the cited statements and
actions. With regard to the matters at issue, the record reflects that
the Supervisor made business decisions that were not dictated by intent to
discriminate against complainant on any of the alleged bases. Even with
regard to the comment concerning the ability of Black people to barbecue,
it is evident that although the Supervisor's remark implied a generalized
stereotype, the statement did not reflect malice or intent to discriminate
against complainant based on her race. Moreover, the incidents at issue
lack sufficient severity or pervasiveness to constitute harassment.
Complainant attempts to establish pretext by arguing that the harassment
by her Supervisor became worse after she filed an EEO complaint in
August 2005. Complainant states that her Supervisor compiled numerous
notes during a six-month period shortly after she filed that complaint.
We find that these contentions presented by complainant do not credibly
challenge the agency's various reasons for the alleged incidents.
Therefore, we find that complainant has failed to establish that she
was discriminated against on the alleged bases.
The agency's decision finding no discrimination is AFFIRMED.
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
March 26, 2009
__________________
Date
2
0120071062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120071062