0120103438
05-10-2012
Tera D. Crawford, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Tera D. Crawford,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120103438
Agency No. 4C-430-0007-10
DECISION
On August 18, 2010, Complainant filed an appeal from the Agency's August 3, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. 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 Rural Carrier Associate at the Agency's post office in Rockbridge, Ohio. On February 13, 2010, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of reprisal when:
1. In September 2009, the Postmaster told Complainant "you started this grievance, I will finish it."
2. On November 2-7, 2009, Complainant was denied the opportunity to work the auxiliary route at Rockbridge Station.
3. On November 4, 2009, Complainant was given a pre-disciplinary interview and was informed she was required to have a backup vehicle to perform her duties.
4. On September 23, 2009, October 13, 2009 and October 21, 2009, Complainant relinquished the auxiliary route assignment to become the carrier for Route Two in an effort to obtain more hours.
5. In September 2009, the Postmaster told Complainant that if she did not like the auxiliary route, she should resign.
6. On August 17, 2009, Complainant was called in and required to change her work assigned for the day.
7. On December 29, 2009, and ongoing, the Postmaster and Postmaster Relief made disparaging comments about Complainant's lack of money and her financial situation.
8. On January 2, 2010, Complainant was denied work hours as the senior rural carrier associate.
9. On January 2, 2010, the Postmaster told the dispatch driver not to wait for Complainant to cause her to drive her dispatch to another location; and
10. On January 14, 2010, Complainant was given a pre-disciplinary interview over the telephone and accused of discussing her EEO case and planning to sue the Agency with other individuals.
In its partial dismissal dated March 9, 2010, the Agency dismissed claims (1-6) pursuant to 29 C.F.R. � 1614.107(a) (1) on the grounds of failure to state a claim. Partial Dismissal at 4. The Agency noted that grievance activity is not a basis of discrimination under Title VII. Id. The Agency observed that Complainant has not shown that the grievance activity was in opposition to any discriminatory action or practice. Id. Further, the Agency stated that even assuming an acceptable basis had been raised, the incidents at issue do not state actionable claims. Id. Claims (7-10) were accepted for investigation. Id. at 2.
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). 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 Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. Final Agency Decision at 17. With regard to claim (7), the Agency noted that Complainant indicated that the Postmaster said to her that he gave her a $20 gift card so that she could work Saturday given that she had not been working. Id. at 8. The Agency determined that Complainant failed to establish a prima facie case of reprisal with regard to this claim. Id. at 10. The Agency stated that Complainant did not establish that she suffered adverse treatment. Id. The Agency further stated that the Postmaster never issued any discipline to Complainant and was nice and considerate toward her. Id. According to the Postmaster, he never made disparaging remarks about Complainant's financial situation. Id. at 15.
With respect to claim (8), the Agency noted that Complainant stated in her affidavit that she worked on January 2, 2010, and that she was denied work hours from approximately November 6, 2009 - February 2010. Id. at 1. According to the Agency, another employee was assigned to an auxiliary route instead of Complainant on November 6, 2009, and thus Complainant had no hours. Id. at 11. The Postmaster stated that in September 2009, Complainant indicated that she was contemplating giving up the auxiliary route because it was difficult coming into work for two hours a day. Id. The Agency stated that Complainant could not bump another carrier from Route One and that she decided to be the Route Two substitute until the time for the carrier on Route One was completed. Id. According to the Postmaster, she explained to Complainant that she would not receive many hours in this position. Id. The Postmaster noted that Complainant was scheduled working hours from November 2009 through March 2010 and that she also relinquished hours. Id. at 12. The Agency determined that Complainant was not subjected to an adverse action during the time period and did not work as a result of her own actions. Id.
As for claim (9), Complainant asserted that on January 2, 2010, she returned to the office at 5:10 p.m. and the truck driver told her that the Postmaster instructed him to wait until 5:25 p.m., and then go to Lancaster without waiting for Complainant. Id. at 8. The Postmaster denied that she told the truck driver to leave Complainant. Id. at 11. Rather, the Postmaster stated that she called the truck driver and requested that he wait as long as he could for Complainant. Id. The Agency determined that the record does not indicate that Complainant suffered any adverse treatment. Id.
In terms of claim (10), Complainant stated that the Postmaster informed her that someone came into the office and reported that she had told that person that she had been fired and that she intended to sue the Agency. Id. at 9. According to Complainant, she had no knowledge of such statements. Id. The Postmaster maintained that Complainant had called customers in the community to tell them that a route had been taken away from her and that she was going to have to work somewhere else. Id. at 11. The Postmaster further stated that she issued Complainant a pre-disciplinary interview and informed her that if she engaged in such conduct during working hours, she could be removed immediately. Id. According to the Postmaster, Complainant denied the charge against her, and no discipline was issued. Id. The Agency determined that Complainant failed to establish that she suffered adverse treatment. Id. With regard to the claim of harassment that Complainant raised in her affidavit, the Agency determined that the conduct alleged by Complainant did not consist of severe or pervasive conduct necessary to constitute a hostile work environment. Id. at 14. The Agency stated that the actions alleged are common workplace occurrences. The Agency determined that Complainant failed to establish that management's explanation was pretext for unlawful discrimination. Id. at 16.
On appeal, Complainant contends that the Postmaster retaliated against her due to the instant complaint and the grievances she filed. Complainant argues that she was denied work opportunities and she accuses the Postmaster of lying with regard to the incident involving the dispatch driver as set forth in claim (9). Complainant also contends that the Postmaster assigned the Route Three auxiliary position to an employee after telling her that she would still be working that route.
ANALYSIS AND FINDINGS
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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tex. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 Complainant's 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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). 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). 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 (Mar. 8, 1994).
Initially, we shall address the Agency's dismissal of claims (1-6) pursuant to 29 C.F.R. � 1614.107 (a) (1) on the grounds of failure to state a claim. The record reveals that these claims of reprisal were based on Complainant's prior grievance activity. A review of these grievances indicates that discrimination was neither alleged nor referenced. Therefore, these claims of reprisal are not based on activity opposing a discriminatory action or practice, and there is no evidence that Complainant engaged in protected EEO activity until November 9, 2009. We thus find that the Agency properly dismissed claims (1-6) on the grounds of failure to state a claim.
With regard to the incidents set forth in claims (7-10), we find that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. Moreover, there is no persuasive evidence that the incidents were unlawfully motivated. Thus, Complainant's claim of harassment fails.
With regard to claims (7-10), we shall assume arguendo that Complainant established a prima facie case of reprisal. The Agency stated as to claim (7) that denigrating remarks were not made about Complainant's financial situation. With respect to claim (8), as reframed above, the Agency explained that Complainant was scheduled for working hours from November through March 2010. The Postmaster noted that Complainant also relinquished hours. As for claim (9), the Postmaster stated that she never told the truck driver to leave Complainant. In terms of claim (10), the Postmaster stated that Complainant was issued a pre-disciplinary interview after a customer informed her that Complainant had called other customers and told them that a route had been taken away from her and that she was going to have to work somewhere else. We find that the Agency articulated legitimate, nondiscriminatory reasons for the actions at issue.
In support of her position that the Agency's reasons are pretext, Complainant argues as to claim (7) that she was given a $20 gift card so she could work on Saturday and that the Postmaster is always commenting that she is not making enough money. Further, Complainant stated that the Postmaster remarked that she should not have stepped down. We find that Complainant has not established that these comments and action were attributable to reprisal. With regard to claim (8), Complainant stated that she was never told that if she stepped down from her auxiliary route, she would not have any guaranteed hours from November 6, 2009 - February 2010. Complainant argued that another employee was assigned to an auxiliary route instead of her and as a result she had no hours. Complainant further contends that the Postmaster stated to her on December 29, 2009, that she was done with her. However, the Postmaster provided dates that Complainant was scheduled for work from November 2009 through March 2010. Further, the Postmaster explained that Complainant was informed that she would not get many hours if she decided to step down from her auxiliary route and be a Route Two substitute, but nevertheless Complainant chose that assignment. Moreover, the Postmaster explained that Complainant also relinquished hours during the relevant period. We find that Complainant failed to establish that any denial of work hours during the relevant period was the result of reprisal.
With regard to claim (9), we discern no persuasive evidence submitted by Complainant or otherwise in the record to support Complainant's contention that the Postmaster instructed the truck driver not to wait for her. As for claim (10), Complainant denied making the comments to the customer that prompted the pre-disciplinary interview. However, upon review of the record, we find that Complainant did not successfully refute the Agency's position that she made the remarks at issue and that therefore, grounds existed to hold a pre-disciplinary interview. We find that Complainant has failed to establish that the Agency's explanation for the matters at issue was pretext for retaliation.
CONCLUSION
The Agency's dismissal of claims (1-6) on the grounds of failure to state a claim is AFFIRMED. The Agency's determination in its final decision with regard to claims (7-10) that no discrimination occurred is AFFIRMED.
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
May 10, 2012
__________________
Date
2
0120103438
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103438