0120101044
06-10-2010
Rosemary Crippen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Rosemary Crippen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101044
Agency No. 4C190003509
DECISION
On January 2, 2010, complainant filed an appeal from the agency's December
10, 2009 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Letter Carrier at the agency's Manayunk Station facility in
Philadelphia, Pennsylvania.
On May 18, 2009, complainant filed an EEO complaint alleging that she was
discriminated against and subjected to harassment on the basis of race
(African-American) when:
1. On October 21, 2008, complainant was given a pre-disciplinary
interview;
2. On December 26, 2008, she was passed over for holiday scheduling;
3. On December 30, 2008, she was improperly bypassed for overtime;
4. On January 12, 2009, her supervisor reprimanded her in a negative
tone;
5. On January 14, 2009, she was required to sign a CA-17 form; and
6. On January 26, 2009, she was issued a 30-day, no time off
suspension.
The agency dismissed claim (1) for untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency noted that complainant
contacted the EEO Counselor on February 2, 2009, while the event raised in
claim (1) occurred over 100 days prior to her contact. The agency also
accepted claims (2)-(6) for investigation. The agency also noted that
claim (1) was to the extent complainant alleged it was part of her claim
of harassment. The agency conducted an investigation of the complaint.
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). In accordance with
complainant's request, 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.
Specifically, the agency found that it provided legitimate,
nondiscriminatory reasons for its actions. Further, the agency determined
that complainant failed to show that the agency's reasons were pretext
for discrimination. To the extent complainant alleged harassment,
the agency determined that complainant filed to show that the agency's
actions constituted a hostile work environment.
Complainant appealed the agency's final decision without specific
comment. The agency requested that we affirm its decision finding no
discrimination..
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").
Dismissal of Claim (1)
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Upon review of the record, we find that complainant contacted the EEO
Counselor well beyond the 45-day time period. Complainant failed to
provide any justification for the delay. As such, we conclude that the
agency properly dismissed claim (1) for untimely EEO Counselor contact.
Further, we note that the agency also correctly investigated claim
(1) to the extent it was included as part of complainant's claim of
harassment.
Disparate Treatment - Claims (2) - (6)
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).
Upon review of the record, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. As to claims (2)
and (3), the agency indicated that complainant was not available initially
in December 2008. When complainant changed her schedule, it was too
late to provide complainant with overtime in December. As to claim (4),
the record indicated that complainant had called in sick for 40 hours.
Complainant returned to work after two (2) days on January 12, 2009,
despite informing the agency that she would be out for five (5) days.
Complainant asserted that she was reprimanded by the Station Manager.
The Station Manager averred that he told complainant to go home because
he had already scheduled a substitute carrier to make complainant's
deliveries. As to claim (5), the record indicated that complainant
needed to update her CA-17 form on January 14, 2009, regarding her
limited-duty position. Finally, the agency indicated, as to claim (6),
the Station Manager issued complainant a 30-day suspension on January 26,
2009. The record indicated that during the exchange between complainant
and the Station Manager on January 12, 2009, the conversation became
confrontational. Complainant, at some point, told the Station Manager,
"I've seen them come and go and I'll be here after you're gone OLD MAN."
The Station Manager determined to issue discipline for failure to follow
instructions, disrupting the work floor, and unprofessional conduct. Upon
review of the record, we find that the agency has provided legitimate, non
discriminatory reasons for its actions. Complainant has not shown that
the agency's reasons were pretext for discrimination based on her race.
Therefore, we conclude that the agency's final decision properly held
that complainant failed to establish her claim of disparate treatment.
Harassment - Claims (1) - (6)
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he 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). Upon review
of the record, taking the events as a whole, we find that complainant
has not shown that the agency's alleged harassment occurred because of
her race. As such, we determine that complainant failed to establish
her claim of race-based harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
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
June 10, 2010
__________________
Date
2
0120101044
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101044