0120090796
05-06-2009
Theresa M. Wanczowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Theresa M. Wanczowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090796
Agency No. 4A-070-0049-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 2, 2008 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a City Carrier at the agency's Haskell Post Office in Haskell, New Jersey. On January 25, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of sex (female), age (53), and in reprisal for prior EEO activity when, beginning in November 2007, she has been subjected to harassment including being required to work unwanted overtime, working conditions and assignments, and being threatened with disciplinary actions.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, complainant subsequently withdrew her request. Consequently, the agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its October 2, 2008 final decision, the agency found no discrimination. The agency found that the evidence in the record did not establish that complainant was subjected to harassment based on sex, age or prior protected activity. The agency further concluded that the alleged harassment, even if it occurred as alleged by complainant, was insufficiently severe or pervasive so as to create a hostile work environment.
On appeal, complainant contends that the agency's final decision "contains many errors and omissions. I feel the entire case needs to be reviewed." Complainant further states that the EEO Analyst incorrectly claimed she carried route 1, when in fact, her route is 3. Complainant also stated that an identified carrier should have been compelled to cooperate in the investigation by submitting an affidavit
In response, the agency argues that irrespective of the error in its final decision, the records supplied by complainant with her appeal nevertheless indicate, that while Route 3 did have more mail than the other routes on some days, there were other days when her route did not have the most mail. The agency further argues that the National Agreement maintains that management has the right to direct employees in the performance of their official duties in accordance with the efficiency of its operations.
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 generally 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 must be determined by looking at all of 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, Inc., 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment, a 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.
Because of complainant's sex, age and prior protected activity,1 complainant satisfies the first element of the prima facie case of harassment. However, the evidence of record does not support a conclusion that complainant met her burden of proof with regard to the remaining three elements of her prima facie case.
With respect to complainant's allegation that she was required to work unwanted overtime, complainant alleged that she was required to work on her scheduled day off, Saturday, November 10, 2007. She further alleged that she was required to work the overtime by her immediate supervisor ("S1") (female, age 50) to get back at her for complaining about her use of C12 as an acting supervisor. Complainant alleged she had informed management that she had plans for a five-day vacation, beginning on November 10. According to complainant, S1 told her that she was selected to come in because she was the next person in the "pecking order" and that she would be absent without official leave (AWOL) on November 10 if she did not report to work
According to S1, complainant was required to work on November 10, 2007 because November 12, 2007 was a holiday. Specifically, S1 stated that, "[w]hen there was a holiday on Monday, the Carrier scheduled for Monday got the preceding day off, which was Saturday. According to the National Association of Letter Carriers (NALC) contract, if someone had to work, it would be the non-scheduled employee [which was complainant] rather than the holiday person. I first asked for volunteers to work that Saturday, but there were none, so [complainant] had to work. I informed her of the reasons why she had to work on November 10, 2007." S1 further stated "I am not aware of any employees in circumstances similar to [complainant] who were not required to work overtime." Furthermore, S1 stated that complainant's sex, age and prior protected activity were not factors in management's decision to have her work overtime. The Officer-in-Charge (OIC) concurred with S1 that while November 10 was supposed to be complainant's regularly scheduled day-off "under the national and local union agreements she had to work. When there is a holiday, there is a pecking order. First, the Part-Time Flexible (PTF) Carriers, who all came in on November 10, 2007. Next are people with a rest day, which was [complainant]." S1 denied that she had complainant come in on that Saturday in order to use C1 as a 204B. In fact, S1 stated while she had offered C1 the opportunity to be a 204B, but he had declined the opportunity.
With respect to complainant's allegation that she was threatened with disciplinary action if she did not show up to work on November 10, 2007, S1 stated that she told complainant "that she would be AWOL if she did not come in on November 10. That was based on the NALC contract which required her to work on that day." Furthermore, OIC stated that he attended the meeting in which S1 informed complainant that she needed to work on November 10, 2007. OIC further stated that S1 explained "the pecking order and which policies were followed. She said an overtime list was posted but no one signed up, and the schedule was posted a week before. [S1] did not threaten [Complainant] with discipline. She told her that she was required and expected to come to work. If Carriers do not come to work when they are supposed to, it can lead to discipline, but that was not expressed at the meeting."
With respect to complainant's claims that OIC verbally reprimand her on November 23, 2007 for not casing her mail to standard on November 21, 2007, and on December 4, 2007 concerning her change of schedule, OIC denied these matters. Specifically, OIC stated "I had a conversation with her, but it was not a reprimand or an official instruction. I talked to her in the office with her shop steward because she was leaving mail behind that everyone else was taking. I let her know that any mail left behind had to be authorized by me and other than that, all mail must go out." OIC stated that in regard to the December 4, 2007 incident, complainant reported to work one-half hour late the previous day, December 3, 2007. OIC stated that because complainant changed her schedule on her own, he questioned complainant about it on December 4, 2007 because "she was supposed to get authorization to do that, but she did not." OIC stated that he "did not reprimand her or give her official instruction. I just asked her about it and told her not to do it again."
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation.
Complainant's claim of harassment fails because she has not established that the incidents cited, even if proven to be true, were the result of her gender, age or prior EEO activity or were sufficiently severe or pervasive such that they unreasonably interfered with her work environment. Many of the matters involved routine work directions or practices with which complainant simply did not agree. Moreover, the agency articulated legitimate non-discriminatory reasons for its actions. Other than general assertions that the agency's actions were based on discriminatory animus, complainant has offered no evidence to establish pretext.
After a comprehensive review of the record, we find that the agency's thorough discussion of the harassment claim correctly analyzed the facts of the case, and in light of the standards applied to a claim of harassment, correctly concluded that complainant had not been subjected to unlawful harassment. Therefore, we AFFIRM the agency's finding that complainant was not subjected to discrimination 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
May 6, 2009
__________________
Date
1 The record establishes that complainant has filed an earlier EEO complaint against the former postmaster in December 2005, which was settled in February 2006. Complainant asserted that she was also made a sexual harassment complaint in 2000 against a coworker ("C1"). Complainant said she told her supervisor about her previous EEO activity, and the supervisor acknowledged this conversation.
2 As explained in note 1, complainant alleged she had made a sexual harassment claim against C1 in 2000.
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0120090796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090796