Sharon D. Ford, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 17, 2009
0120072430 (E.E.O.C. Jun. 17, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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