0120072430
06-17-2009
Sharon D. Ford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon D. Ford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072430
Hearing No. 430-2006-00281X
Agency No. 4C-280-0053-06
DECISION
On April 23, 2007, complainant filed an appeal from the agency's March
22, 2007 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 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 Carrier at the agency's Plaza Station in Charlotte, North Carolina.
On April 12, 2006, and as amended on April 30, 2006, complainant filed
an EEO complaint alleging that she was discriminated against on the bases
of sex (female) and in reprisal for prior protected EEO activity when:
1. beginning on August 12, 2005, and through mid-December 2005,
she was sexually harassed by a supervisor at the Plaza Station;
2. on December 17, 2005, she was issued a Letter of Warning for
Unsatisfactory Work Performance;
3. on April 14, 2006, her request for reassignment was denied;
4. since March 25, 2006, and ongoing, she was not provided assistance
on her route; and
5. on April 29, 2006, she was "given a hard time" regarding a
request for four hours of unscheduled sick leave.
With respect to her sexual harassment claim, complainant alleged the
following: (1) on August 12, 2005, complainant reported to Plaza Station
to get a copy of her assigned route and her supervisor stated that she
was assigned to a "dog route" meaning heavy walking; (2) her supervisor
stated that complainant was "thick," referring to her size, and that she
could stand to lose some weight; (3) on September 2, 2005, while serving
as the closing supervisor, her supervisor told her that management made
a mistake by taking time off of her route and that management should
have permitted her to carry the full route on her first day; (4) on
September 19, 2005, complainant's supervisor notified complainant that
he was disappointed with her because during the period she worked at her
prior work facility she was more productive than at the Plaza Station;
(5) on September 19, 2005, her supervisor questioned her about her tongue
ring, and mentioned that it looked "exciting"; (6) on October 22, 2005,
her supervisor mentioned that he would assist her in completing her
Form 991 for a price the two of them could work out; (7) on December 3,
2005, her supervisor commented on how tight her uniform pants were,
then asked if she had planned on doing any work; (8) on December 12,
2005, complainant turned in medical documentation in support of her
absence and the supervisor told her that he had taken her out of the
system, because she did not want to work; (9) on December 13, 2005,
complainant's supervisor questioned her about her whereabouts and used
his tongue to lick around the bottom of his lip and around his top lip,
then took a chicken bone, stuck it in his mouth and sucked the meat off;
(10) on December 15, 2005, her supervisor issued her a Letter of Warning
related to the delivery of an Express Mail item; (11) on December 16,
2005, her supervisor was hostile towards her, and requested that she
work outside of her medical limitations; and (12) on December 17, 2005,
her supervisor yelled at her questioning whether she wanted to work.
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 the AJ subsequently remanded the case to
the agency, citing complainant's failure to cooperate in the hearing
process.1 Consequently, 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 final decision found that complainant's claim of
harassment did not rise to the level of severe and pervasive conduct,
and that complainant failed to prove that any of the conduct occurred
because of her sex. Even so, once complainant alerted management to the
alleged harassment, it conducted an investigation into her allegations,
and determined that the conduct did not occur as alleged. As for the
remaining claims, the agency found that complainant failed to establish
that her supervisor was aware of her prior EEO activity at the time of the
conduct, or was involved in the adverse action at issue. Accordingly,
the agency found complainant failed to establish a prima facie case of
reprisal because no causal connection existed between her complaint of
sexual harassment on December 19, 2005, and the Letter of Warning issued
on December 17, 2005. As for the denial of the reassignment request,
the agency found that complainant's supervisor was not involved in
the decision, and that the individual responsible was not aware of
complainant's EEO activity. Rather, complainant's request was denied
due to her recent disciplinary action, and her accident history. As for
her final two claims, the agency found that, in fact, complainant was
provided assistance and her leave request was approved.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates her contentions regarding the
allegations of discrimination set forth above.
The agency did not reply to complainant's appeal.
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").
To establish a prima facie case of hostile environment sexual harassment,
complainant must prove, by a preponderance of the evidence that: 1)
she belongs to a protected class; 2) she was subjected to unwelcome
sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; 3) the harassment complained of was based on
sex; 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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); See
also, Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); Katz v. Dole, 709
F.2d 251 (4th Cir. 1983). When the alleged harassment is by a supervisor,
the agency is subject to vicarious liability. Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998).
After a review of the record, we find complainant failed to establish,
by a preponderance of the evidence, that she was subjected to sexual
harassment. Complainant failed to present persuasive evidence that the
conduct complained occurred as alleged. Moreover, the agency conducted
its own investigation, and found insufficient evidence to support
complainant's claim. We further find that, while the conduct in some
of the allegations is certainly inappropriate, it does not rise to the
level of severe and pervasive conduct such as to create a hostile work
environment.
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). 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, 143 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993).
After a careful review of complainant's disparate treatment claims,
we further find insufficient evidence supporting complainant's claims.
The record does not reflect that complainant's supervisor was aware of
complainant's EEO activity at the time he issued the Letter of Warning.
Furthermore, complainant failed to present evidence that the agency's
reason for issuing the Letter of Warning was a pretext for retaliation.
Specifically, complainant's supervisor averred that he issued the
disciplinary action because of complainant's failure to appropriately
scan a piece of mail. The record reveals others employees were
similarly treated. As for her claim the she was retaliated against
when her request for reassignment was denied, the record reveals the
individual responsible for the denial was not aware of complainant's prior
EEO activity. Further, complainant failed to present evidence to prove
that the agency's reasons for denying the reassignment were pretext to
discriminate or retaliate. Finally, the record reveals that complainant
was provided assistance on her route, and her leave request was granted.
Accordingly, we find no discrimination with respect to these issues.
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.
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 17, 2009
Date
1 Complainant does not contest on appeal the AJ's determination to remand
the complaint without a hearing.
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0120072430
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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