Patricia Hardy, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 26, 2009
0120071062 (E.E.O.C. Mar. 26, 2009)

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