0120063125
10-18-2007
Carolyn Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Carolyn Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01200631251
Agency No. 4J-606-0227-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 31, 2006 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. The appeal is subject
to our de novo review under 29 C.F.R. � 1614.405(a). Complainant alleged
that the agency harassed2 and discriminated against her on the basis of
sex (female) when from September 10 through September 17, 2005, she was
not paid.
The facts indicate that at the time of the alleged incident, complainant
was a City Carrier at the Roseland Station in Chicago, Illinois.
Complainant had a physical condition which required that she work with
certain medical restrictions. On September 7, 2005, she provided her
supervisor medical documentation outlining her restrictions. Based on
the documentation, management offered her a new job tailored to meet
her restrictions on September 8, 2005. The supervisor (S1) instructed
complainant that she was to report for duty at the Main Post Office on
September 10, 2005. However, displeased with the offer, complainant did
not sign the Assignment Order. She later explained to the EEO Counselor
that she did not agree to the offer at the time because she did not feel
she had been given enough time to review and discuss it with her doctor.
On September 9, 2005, complainant presented management with a new doctor's
statement indicating that she was medically restricted from collecting
mail. She then turned to her Union representative for advice as to how
she should proceed and was told to report back to her original station,
the Roseland Station, and punch-in under the timekeeping code "12603."
Complainant did not report for work at the Main Post Office on September
10 as instructed. Ultimately, complainant signed the Assignment Order
on September 16, 2005. Believing, however, that she was denied pay from
September 10 through September 17, 2005 because of her sex, she filed
the instant complaint.
At the conclusion of the investigation, the agency provided complainant
with a copy of the Report of Investigation (ROI) and the option of
choosing to have a hearing before an EEOC Administrative Judge or
having the agency issue a final decision.4 According to the agency and
unrebutted by complainant, she failed to elect within the designated
period. As such and in accordance with 29 C.F.R. � 1614.110(b), the
agency issued a final decision on the matter, concluding that complainant
had failed to meet her burden of proving that management engaged in
unlawful discrimination.
We note that complainant did not submit an appeal brief, but rather, she
submitted a hand-written, half-page statement in which she claims that the
agency's decision must be reversed because Form 1723 (Assignment Order)
"was issued one week after the fact," and because the supervisor was
on vacation. The agency, for its part, pleads that complainant's appeal
be dismissed because she has not proffered any new evidence or arguments
that would cause the Commission to reverse the agency's final decision.
We agree with the agency. Complainant has failed to establish a prima
facie case of discrimination. She stated in her affidavit that two
other employees were treated more favorably than she; however, by her
own admission, these two employees were pregnant women and therefore
within her protected class - women.5 See Affidavit A As such, these
comparative employees do not help her prove her claim. She further
explains in her affidavit that she believes that S1's actions were
discriminatory because of the manner in which S1 discussed the matter
with Union representatives and because he stated to them "what he would
do to [her] if [she] didn't report to the Main Post Office." Id. Again,
we do not find that these facts reasonably give rise to an inference
of discrimination, i.e., that complainant's sex was a factor in not
paying her from September 10 through September 17, 2005. See Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978).
Even if we accept that complainant established a prima facie claim, we
still find that she has not rebutted the agency's proffered legitimate,
non-discriminatory reason for not paying her. Management explained that
complainant was not paid because she did not report to work as instructed
and because her timecard reflected that she had not worked during the
seven day period at issue. In turn, complainant has not presented
evidence showing that the agency's alleged actions were motivated
in any way because of her sex or that the agency's proffered reason
for its action was pretextual. We remind complainant that pretext
can be demonstrated by "showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency's]
proffered legitimate reasons for its action that a reasonable fact finder
could rationally find them unworthy of credence." Dalesandro v. United
States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing
Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)).
By the same token, we find that her harassment claim fails. Even assuming
that her allegations are true, complainant must prove that: (1) she
was subjected to harassment that was sufficiently severe or pervasive
to alter the terms or conditions of employment and create an abusive or
hostile work environment, and (2) the harassment was based on membership
in a protected class. See Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 6 (Mar. 8, 1994). As discussed above, she has failed
to satisfy criterion (2) because she has not shown that management's
actions were motivated by discriminatory animus. See Oakley v. United
States Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Therefore, having reviewed the record and considered the arguments on
appeal, we find no error in the agency's final decision. Complainant has
failed to prove her claim. As such, we affirm the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 18, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that complainant did not specifically allege harassment in
her Formal Complaint or to the EEO Counselor; however, we are exercising
our discretion to address the claim. See Affidavit A.
3 The record explains that the "1260" code is used to account for
employee work times when the timecard is not functioning properly.
However, management testified that in order for the code to be accepted,
it must be input with management's prior approval. See Affidavit B.
Complainant claims, that the Union representative, who is fellow carrier
and not a supervisor, purportedly advised complainant to use the "1260"
code because S1 was the one responsible for transferring her timecard
to the Main Post Office. See Affidavit A.
4 Complainant claims that she never received a copy of the ROI in
February 2006. However, the ROI was sent to her address of record,
and even assuming it is true that she did not receive it, there is no
evidence that complainant made any affirmative effort to request another
copy from either the agency or this office.
5 We note that for comparative evidence to support complainant's prima
facie case, the evidence must show that management afforded treated
an employee outside of complainant's protected group differently under
similar circumstances. See Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). All relevant aspects of complainant's employment must be nearly
identical to those of the comparative employee. See O'Neal v. U.S.P.S.,
EEOC Request No. 05910490 (July 23, 1991).
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0120063125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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