Tamara D. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 3, 2009
0120081659 (E.E.O.C. Sep. 3, 2009)

0120081659

09-03-2009

Tamara D. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Tamara D. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081659

Agency No. 4J-630-0071-07

DECISION

On February 22, 2008, complainant filed an appeal from the agency's

January 23, 2008 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., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Carrier at the Southwest Station in Saint Louis, Missouri.

On August 30, 2007, complainant filed an EEO complaint alleging that

she was subjected to harassment on the bases of race (African-American),

her sex, and disability (Lumbar Strain, Disc Disease) since on or about

April 1, 2007, when:

1. on unspecified dates, she was singled out by her

supervisor (S1);

2. on May 31, 2007, S1 spoke to her in a degrading manner

and told her to find a new job outside the Postal Service;

3. on numerous dates she was denied overtime;

4. S1 came out on her route and made bad comments about her;

and

5. S1 talked about her to other employees.

Complainant also alleged that she was subjected to disparate treatment

based on her race, sex, and disability with regard to incident (3).

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). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), 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. Complainant makes

no arguments on 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").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17

(1993).

Complainant alleges that she was subjected to a hostile work environment.

To establish that she was subjected to a hostile environment, complainant

must show that: (1) she is a member of 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 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.

Assuming arguendo that complainant is an individual with a disability,

we find that complainant failed to establish that the incidents occurred

as she alleged or were based on her protected classes. With regard to

incident (1), S1 denied that he singled complainant out. With regard

to incident (2), S1 provided affidavit testimony that he did not degrade

complainant or inform her that she needed to work at Wal-mart. Instead,

S1 stated that complainant misconstrued his explanation to complainant and

other employees that the agency was initiating a program for employees

who are permanently unable to perform the duties of their position to

assist in finding outside employment. With regard to incident (3), S1

stated that complainant was medically restricted to pull and case only

one route per day and only permitted to work 2.0 to 2.5 hours per day.

S1 did not wish to work complainant outside of these limitations and

therefore, even if she is on the overtime desired list, he is unable

to provide her with overtime. With regard to claims (4) and (5),

S1 stated that the only time he went to complainant's job site was to

give her instructions, obtain her signature on an official form or to

advise her of some pending action and only employees he has talked to

about complainant are EAS supervisors or union stewards when necessary

to discuss complainant's performance or attendance.

We note that complainant has not offered any specific testimony as to the

dates, times, or what was specifically said concerning incidents (1), (4),

and (5). Additionally, complainant failed to proffer any statements from

co-workers to corroborate her interpretation of the events. Further,

nothing in the record supports complainant's contentions that S1 was

motivated by animus toward her protected bases. Accordingly, we find

that complainant failed to establish that she was subjected to unlawful

harassment as alleged.

Turning to complainant's disparate treatment claim concerning incident

(3), we note that 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). She 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).

Assuming arguendo that complainant established a prima facie case for

race, disability, and sex discrimination, we find that the agency

articulated legitimate, nondiscriminatory reasons for its actions.

As noted above, S1 provided affidavit testimony that complainant was

medically restricted to pull and case only one route per day and only

permitted to work 2.0 to 2.5 hours per day. S1 did not wish to work

complainant outside of these limitations and therefore, even if she

was on the overtime desired list, he was not always able to provide her

with overtime. The record also reveals that complainant was afforded

opportunities to work overtime on other days.

Since we found that the agency articulated a legitimate, nondiscriminatory

reason for his actions, the burden shifts to complainant to prove by a

preponderance of the evidence that the agency's reasons were a pretext

for discrimination. Complainant contends that a co-worker (CW1) who

is on limited duty is afforded more opportunities to work overtime.

We find, however, that CW1 is not similarly situated to complainant.

CW1 is capable of working 8 hours per day and has a short-term injury,

whereas complainant is only capable of working 2 or 2.5 hours per day and

has a permanent impairment. We find that complainant failed to provide

any other evidence to substantiate her allegations of discrimination.

Accordingly, we find that complainant failed to show that the agency

proffered reason was a pretext for discrimination.

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 that complainant failed to show she was

discriminated or harassed as alleged.

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

September 3, 2009

Date

2

0120081659

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120081659