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.