Terry Y. Tolbert, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01991156-01990306 (E.E.O.C. Apr. 26, 2000)

01991156-01990306

04-26-2000

Terry Y. Tolbert, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Terry Y. Tolbert, )

Complainant, )

) Appeal Nos. 01990306

v. ) 01991156

) Agency Nos. 4J-481-0136-97

William J. Henderson, ) 4J-481-0170-97

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

INTRODUCTION

Terry Y. Tolbert, (complainant) timely filed appeals with the

Equal Employment Opportunity Commission (the Commission) from final

agency decisions (FADs) concerning complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq, and the Age Discrimination

in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.<1>

The Commission hereby accepts the appeals in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency correctly determined

that complainant had failed to prove that the agency discriminated against

her based on sex, race, and age when she was forced to work overtime, her

route was altered, she received job discussions, and she was harassed.

BACKGROUND

Factual History: Complaints A and B<2>

Complainant was employed by the agency as a City Carrier at Fenkell

Station, Detroit, Michigan. She maintained that she was discriminated

against on May 2, 1997, and other dates, when she received Job

Discussions from M-2, Supervisor, Customer Services, regarding using

unauthorized overtime. M-2 testified in an affidavit that he has no

knowledge of such a discussion and that there is no official record of it.

M-2 also testified that during the time period, May 2-13, 1997, he gave

daily instructions to carriers that they would pivot<3> and all routes

would be held to eight (8) hours. His instructions were given over the

public address system.

On May 7, 1997, complainant was told to pivot one hour on Route #12.

However, the regular carrier on Route #35 was allowed one hour assistance

on his route when he pivoted one hour on a route that he was familiar

with. Complainant also received assistance when she pivoted and she

still used .25 hours of overtime, despite the fact that one hour was

removed from her regular route. Complainant testified that M-2 forced

her to work overtime, although she was not on the Overtime Desired List.

M-2 testified that complainant was never forced to work overtime, but

rather that she went in to overtime because she was not carrying her

route in the allotted time.

On July 7, 1997, complainant received her route revisions and learned that

200 additional delivery stops had been added to her route. In addition,

she received a territorial change on her route that took away her

business district and gave her a residential area with marriage mail

and additional steps. The complainant asserted that as a result of her

route being overburdened, she was forced to work overtime on almost a

daily basis. She maintains that the route adjustments were made based

on the demonstrated ability of younger male employees, who were able

to complete the route in less time, and that she was forced to work

overtime in that when she called in at the end of her work day with

an incomplete route, management told her to complete her deliveries,

and she was not paid for that overtime. In an affidavit, M-1, Manager,

Customer Services, at complainant's worksite testified that: 1) all

routes were adjusted to eight (8) hours; 2) there were a total of four

(4) routes eliminated from complainant's worksite and that the adjustments

were made without consideration of the individual's race, sex, height or

weight; 3) all adjustments were made in compliance with the M-39 Handbook

dated June 1996; 4) the times used in making the adjustments were taken

from previous Route Inspections from the relieving route's demonstrated

ability; 5) the complainant was not on the Overtime Desired List, and

no one either forced or instructed her to work overtime.

In complaint B, complainant claims that she was discriminated against

because she was harassed when her mail was counted and cased, when

management spied on her in the field, and when she received a Fitness

for Duty Examination. She provides neither dates or specifics of

these incidents. The record reveals that the M-39 Handbook specifies

that when routes are inspected the manager will observe the carrier's

office and street work for one or more days, which includes counting

and recording the mail handled, and the time used for each function.

The record further reveals that complainant required the use of a

pushcart when she delivered her route. Push carts are given to carriers

who need assistance with carrying the mail. Complainant did receive a

Fitness For Duty Examination, the result of which was the determination

that complainant was fit for duty with the accommodation of continued

use of a push cart. Agency regulations allow management to "order

fitness-for-duty examinations at any time." Such an examination "is

required in determining whether an employee is able to perform the duties

of the position because of medical reasons.�

Procedural History: Complaint A

Complainant requested counseling on May 16, 1997. After a final

interview, complainant filed formal complaint no. 4J-481-0136-97

(complaint A) on September 22, 1997, claiming discrimination based

on race (Black), sex (female), and age (d.o.b. 2-4-47) when: 1) on

May 2, 1997, and other dates, she received job discussions; and 2)

she was harassed when she was forced to work overtime on May 13, 1997.

Complainant requested a final agency decision without a hearing by letter

dated August 24, 1998. In a final agency decision (FAD1), dated October

6, 1998, the agency determined that complainant had not been discriminated

against on the bases of race, sex, or age. This appeal followed.

Procedural History: Complaint B

Complainant requested counseling on July 31, 1997. She filed a formal

complaint no. 4J-481-0170-97 (complaint B) on September 22, 1997,

claiming discrimination on the bases of race (Black), sex (female),

and age (d.o.b. 2-4-47) when: 1) she received her route revisions and

learned that 200 stops were added to her route; and 2) she was forced to

work overtime. She further alleged that she is the victim of perpetual

unjust and undue harassment because her mail was counted and cased,

management spied on her in the field, and she was required to take a

Fitness for Duty Examination. In a final agency decision dated October

23, 1998 (FAD2), the agency determined that complainant had not proven

that her route adjustment was due to discrimination on any basis.

This appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). 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). Under the ADEA, the appellant must establish that

age was the determining factor in the agency's action against her. Hazen

Paper Company v. Biggins, 507 U.S. 604, 610 (1993). 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). Once the agency has met its burden, the

complainant bears the ultimate responsibility to persuade the fact finder

by a preponderance of the evidence that the agency acted on the basis

of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993).

This established order of analysis in discrimination cases, in which

the first step normally consists of determining the existence of

a prima facie case, need not be followed in all cases. Where the

agency has articulated a legitimate, nondiscriminatory reason for the

personnel action at issue, the factual inquiry can proceed directly to

the third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claim that on May 2, 1997, and other

dates, she received job discussions, the agency presented evidence that

complainant never received these job discussions because there is no

record of them. We find that the agency has articulated a legitimate,

nondiscriminatory reason, namely that these discussions never took place.

Since the agency articulated such a reason, the burden returns to the

complainant to demonstrate that the agency's articulated reason was a

pretext for discrimination. We find that the complainant has failed to do

so because she has not provided evidence that these job discussions did,

in fact, occur. Nor is there evidence of them in the record. Therefore,

the agency's determination that complainant failed to establish that

she was discriminated against, with respect to this claim, was correct.

In response to complainant's claim that she received her route revisions

and learned that 200 stops were added to her route, the agency presented

evidence that all routes were adjusted to eight hours in compliance

with the M-39 Handbook, and that they were all adjusted based on the

demonstrated ability of the individual who previously carried the

route. We find that the complainant has failed to demonstrate that

the agency's articulated reasons were a pretext for discrimination.

Complainant asserted that a white employee and other male employees

were not given enormous additional delivery stops and/or territorial

changes during the adjustment period. She specifically named a female

carrier, C-1 and a male employee, C-2. The evidence which complainant

presented fails to show pretext because C-1 received the same adjustment

as complainant, and C-2's performance was based on an agreement as to

what his performance would be, permissible under Postal Regulations,

and he was held to that agreement. Complainant has not shown that her

route adjustment was made for discriminatory reasons. Therefore, the

agency's determination that complainant failed to establish that she

was discriminated against, with respect to this claim, was correct.

In response to complainant's claim that she was forced to work overtime,

the agency presented evidence that all of the routes were adjusted in the

same manner, that complainant worked more than eight hours on certain days

because she had not completed her deliveries in the time that her route

was scheduled to take, and that she was never forced to work longer than

it took to complete her scheduled route. We find that complainant has

failed to demonstrate that the agency's articulated reasons were a pretext

for discrimination because she has not shown that her route was adjusted

any differently from any of the other carriers, or that there were other

carriers who were not required to finish their routes. Therefore, the

agency's determination that complainant failed to establish that she

was discriminated against, with respect to this claim, was correct.

Harassment

The Commission also finds that complainant has not established that

she was harassed on the bases of her race, sex, or age. Harassment of

an employee that would not occur but for the employee's race, color,

sex, national origin, age, disability or religion is unlawful if it is

sufficiently patterned or pervasive. Garretson v. Department of Veterans

Affairs, EEOC Appeal No. 01945351 (April 4, 1996); McKinney v. Dole,

765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two types

of such harassment: (1) harassment that results in a tangible employment

action; and (2) harassment that creates a hostile work environment.

Because the issue was raised by complainant, we will analyze this matter

as an allegation of harassment that creates a hostile work environment.

In order for harassment to be considered as conduct in violation of the

regulations that the Commission enforces, it must be pervasive or severe

enough to significantly and adversely alter the conditions of the victim's

employment and create an abusive working environment. Harris v. Forklift

Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated

from the standpoint of a reasonable person, taking into account the

particular context in which it occurred. Highlander v. K.F.C. National

Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes

that unless the conduct is very severe, a single incident or group of

isolated incidents will not be regarded as discriminatory harassment.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). We do

not find that the incidents identified by complainant were pervasive

or severe enough to significantly and adversely alter the conditions of

her employment. The incidents that complainant identifies as harassment

were: 1) a single instance of having to work overtime, which because it

was a single instance was not pervasive or severe enough to constitute

harassment; 2) the fact that management observed complainant in the

field and counted and cased her mail, neither of which were harassment

because the record shows that this was the normal procedure when

management evaluated carrier routes. With respect to the Fitness for

Duty Examination, the record herein does not support a conclusion that it

was severe or pervasive enough to constitute harassment. Additionally,

these incidents as a whole do not constitute harassment.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

04-26-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________________

Date 1 On November 9, 1999, revised regulations governing

the EEOC's federal sector complaint process went into effect. These

regulations apply to all federal sector EEO complaints pending at any

stage in the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.

2 We have consolidated complaints A and B because we believe that they

were fragmented in their separate form. The claims in both complaints

form the factual basis for the question of whether complainant was

subjected to harassment in her workplace.

3 Pivoting is a carrier work sharing process used daily to fill the work

hours of a carrier who does not have enough work on their own route.