0120122986
12-21-2012
Shelley P. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Shelley P. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122986
Agency No. 1E971001512
DECISION
On July 17, 2007, Complainant filed an appeal from the Agency's August 29, 2011, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Operations Supervisor at the Agency's Processing and Distribution facility in Eugene, Oregon.
On March 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
1. on November 4, 2010, she was notified that her hours would be changed, on November 19, 2010, she was notified that she would be assigned different duties, and on December 7, 2010, her duties were reassigned; and
2. on November 20, 2010 and continuing, she has been isolated and belittled.
At the conclusion of the investigation, the Agency provided Complainant 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 the Agency subjected her to discrimination as alleged.
In its final decision, the Agency found that the alleged responsible management officials articulated legitimate, non-discriminatory reasons for their actions, and Complainant failed to demonstrate that the Agency's explanations were pretext to unlawful discrimination.
Complainant alleges that when she accepted the position at issue herein she was advised that the shift hours would be 7am to 4pm. Complainant further alleges that on November 4, 2010, she was notified by her supervisor that the hours for the position would be changed to noon to 9:00pm. Complainant indicates that she had already been working the 7am to 4pm shift for three weeks at the time of the change on November 4, 2010, and that she was surprised by the change. Complainant points out that the supervisor she replaced worked the 7am to 4pm time shift.
According to management officials, Complainant was advised before she was placed into the position at issue that her work hours would be noon to 9pm. The management witnesses further indicated that Complainant was advised that her hours would be different than those of the supervisor she was replacing. The Agency provided evidence that while Complainant initially assumed that she would be working the same hours as her predecessor and did so during the first few weeks of taking the position, the official written job offer to Complainant came from the Agency's District office with the shift of noon to 9pm. Witnesses indicated that there was a decision to change the hours of the position in order to provide supervisor coverage during the swing/late shift. The local office was responsible for providing Complainant information on the hours of the position Complainant would be taking.
Concerning Complainant's allegation that her job duties had been changed, the Agency indicates that Complainant's job duties remained the same and were never altered. Complainant was charged with performing duties both supervisory in nature and those requiring knowledge of all aspects of postal maintenance. However, the Agency maintains that when Complainant was informed that her responsibilities could include building and mail processing equipment maintenance, Complainant indicated that she did not have knowledge or experience in those areas. In that regard, the Agency acknowledges that while Complainant was learning the job, some of her subordinates were asked to perform some of her work for her.
According to the record, Complainant failed to elaborate on the specific incidents in which she had been belittled and isolated. The record further indicates that Complainant herself placed a large piece of cardboard around her cubicle thereby isolating herself from her co-workers. The Agency does acknowledge that Complainant's work hours of noon to 9pm may have felt isolating to Complainant in that no other supervisor held those hours. However, as indicated earlier, the hours were chosen by the Agency in order to provide supervisory coverage during the late shift.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
To the extent that Complainant alleges that she was subjected to discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. In reaching this conclusion, we note that Complainant has failed to describe any specific incident of discriminatory harassment. The Commission concludes that Complainant did not prove that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that she also failed to prove that any of the Agency's actions were unlawfully motivated by her protected classes. Even assuming that the alleged incidents would be sufficiently severe or pervasive to constitute a hostile work environment, there is no evidence that the Agency was motivated by discriminatory animus. Accordingly, Complainant has not shown that she was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 21, 2012
__________________
Date
2
0120122986
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122986