0120090640
02-15-2012
Doreen M. Deese, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Doreen M. Deese,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120090640
Hearing No. 550-2008-00280X
Agency No. 4F-956-0028-08
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant
was employed as a Supervisor of Customer Service at the Agency’s
Roseville Sierra Garden Post Office in Roseville, California. Report of
Investigation (ROI), at 2 and 7. Complainant sought counseling and
subsequently filed a formal complaint.
Complainant alleged that she was subjected to a hostile work environment
on the bases of race (African-American), sex (female), age (over 40),
and in reprisal for prior EEO activity when:
1. Since August 21, 2007, Complainant was subjected to a hostile work
environment in that she was not treated with dignity, fairness or respect.
2. On October 2, 2007, Complainant was issued a Letter of Warning in
Lieu of a 7-Day Time Off Suspension for an incident that occurred on
August 2, 2007.
3. On October 16, 2007, Complainant’s schedule was changed and she
was assigned PM duties.
4. In January 2008, Complainant was bypassed for a detail as Officer in
Charge (OIC)/Acting Manager at the Vernon Station.
5. Complainant was not paid overtime.1
At the conclusion of the investigation, Complainant received a copy
of the investigative report. The Agency informed Complainant of
her right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On October 6, 2008, an AJ issued a decision without a hearing. The AJ
found that there was no genuine issue of material fact in dispute,
and concluded that Complainant had not been discriminated against.
Specifically, the AJ found that the Agency presented legitimate,
nondiscriminatory reasons for its actions, which Complainant failed
to rebut.
On October 20, 2008, the Agency issued a decision finding no
discrimination. The Agency fully implemented the AJ’s decision.
Complainant now appeals from that decision.2 We find that the AJ
correctly defined the issues in the complaint.
On appeal, Complainant argued, through her representative, that the AJ
mentioned Postmaster A eight times in her decision; that Postmaster A had
no association with her case; and that Postmaster A was unknown to her
or this file. In response to Complainant’s appeal, the Agency stated
that the AJ had mentioned Postmaster A in her decision, a name that was
unrelated to the case. However, the Agency argued that, on November 24,
2008, the AJ re-issued her decision correcting the pages in which she
inadvertently used the name A for the Postmaster in Complainant’s case.
ANALYSIS AND FINDINGS
As an initial matter, we find that the AJ’s reference to Postmaster
A instead of Postmaster B was harmless error and in no manner changes
the analysis or final disposition of the complaint.
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. Upon review,
we find that the AJ properly issued a decision without a hearing because
there is no genuine issue of material fact.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: "Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile work environment, Complainant must show
that: (1) she belongs to 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 her statutorily protected class; (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. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
Upon review, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, the
Postmaster of the Roseville Sierra Garden Post Office (Postmaster B)
stated that Complainant had never complained to him about a hostile work
environment; therefore, an investigation was not needed. Postmaster B
asserted that he had treated all employees in the Roseville Post Office,
including Complainant, with dignity, fairness, and respect. Postmaster
B said that he was not aware of any supervisor or manager not treating
Complainant with dignity, fairness, and respect. Postmaster B stated that
Complainant’s race, sex, and/or age was not a factor in any decision
made with regards to Complainant’s working conditions or being treated
with dignity, fairness or respect. Postmaster B stated that he was not
aware of any prior EEO activity of Complainant. ROI, at Affidavit B.
The Manager of Customer Services of the Roseville Sierra Garden
Post Office (Manager) stated that he was unaware of any hostile
work environment alleged by Complainant. The Manager said that he
treated Complainant with dignity, fairness, and respect. The Manager
asserted that he was not aware of any supervisor or manager not treating
Complainant with dignity, fairness, and respect. The Manager claimed that
Complainant’s race, sex, or age was not a factor in any decision made
with regards to her working conditions or being treated with dignity,
fairness, or respect. The Manager stated that he was not aware of any
prior EEO activity of Complainant. ROI, at Affidavit C.
As to claim 2, Postmaster B stated that Complainant was issued a
suspension for her part in falsifying clock rings for employees.
Postmaster B asserted that Complainant notified employees not to clock
in from the street and to see Supervisor A. Postmaster B argued that
he concurred with the decision to issue Complainant a 7-Day No Time Off
Suspension on October 17, 2007. Postmaster B claimed that an Office
of the Inspector General (OIG) investigation and his own investigation
determined that two supervisors, Supervisor A and Complainant, were
placing false clock rings in for employees returning from the street
(delivery). Postmaster N said that some were changed by over an hour.
Postmaster B articulated that, at the time, the Manager was the acting
manager of the Roseville Sierra Gardens Post Office. Postmaster B stated
that management received the OIG report, the Manager requested a 7-Day
Suspension for Supervisor A and Complainant. Postmaster B asserted
that Complainant failed to properly discharge her duties as supervisor.
Postmaster B stated that an Investigative interview was conducted by the
Manager prior to making his decision and that Supervisor A and Complainant
were the only employees verified by the OIG as falsifying clock rings.
ROI, at Affidavit B.
The Manager stated that he had helped at the Sierra Gardens Post
Office for three and a half months when the incident occurred.
The Manager asserted that the National Association of Letter Carriers
(NALC) informed Postmaster B that two Supervisors were involved in
falsifying clock rings or instructing carriers not to clock in from
the street. The Manager averred that a Special Agent (Special Agent A)
in OIG conducted an investigation. The Manager claimed that there were
numerous statements by city carriers alleging that two supervisors had
instructed them to not clock in from the street. The Manager argued
that he was instructed by Postmaster B to investigate these allegations
and to follow up with a corrective action, if necessary, because he was
a Level-20 Manager. The Manager articulated that the reasons cited by
management for issuing Complainant a 7-Day No Time Off Suspension on
October 17, 2007, were based on a report provided by Special Agent A;
witnesses’ statements contained in the report; and because Complainant
could not provide acceptable answers defending her actions during the
investigative interview. ROI, at Affidavit C.
With respect to claim 3, Postmaster B stated that, in October 2007,
he changed the times and days off for several of his supervisors,
affecting Complainant and other supervisors. Postmaster B asserted
that his authorized complement was reduced by one supervisor position
in Roseville so he aligned duties to cover operations without a relief
supervisor and matched his staff to meet the needs of the service.
Postmaster B claimed that, at no time, was race, sex, and/or age a
factor in making each employee’s assignment. ROI, at Affidavit B.
Furthermore, there is no indication that Postmaster B thought working the
PM supervisor shift was less desirable than working the AM supervisor
shift. The Manager stated that he was not involved in any scheduling
of supervisors at the Sierra Gardens Post Office. The Manager said that
Postmaster B scheduled the Supervisors. ROI, at Affidavit C.
Concerning claim 4, Postmaster B stated that he did not post an OIC detail
for the Vernon Station in January 2008. Postmaster B said that the
Manager was being assigned to a Pacific Area Audit Team, and at first,
Postmaster B did not know if it was an extended detail. Postmaster B
asserted that he found out that it was for two or three days a week as
needed, and when the Manager was not available, he covered it with the
existing supervisor at the Vernon Station by backfilling the supervisor
position with an acting supervisor. Postmaster B claimed that this
was common practice at the Vernon Station and Granite Bay Stations
and was the least disruptive practice. Postmaster B articulated that
Complainant’s race, sex, and/or age was never a factor in his decision.
ROI, at Affidavit B.
Corresponding to claim 5, the record indicates that advanced approval
was necessary for overtime, but there is no indication that Complainant
was given advanced approval for any overtime during the time at issue.
As to the claim of harassment, the AJ found that there was no evidence
to raise a genuine issue of material fact that any of the foregoing
incidents were motivated by race, sex, age, or in reprisal for protected
EEO activity. AJ’s Decision, at 19. Therefore, the AJ found no
harassment discrimination.
The Commission finds that Complainant failed to rebut the Agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Additionally, the Commission finds that Complainant has failed to
show by a preponderance of the evidence that she was subjected to
discrimination on the bases of race, sex, age, or in reprisal for prior
protected activity. The Commission also finds that Complainant has failed
to show by a preponderance of the evidence that she was subjected to
discriminatory harassment.
CONCLUSION
The Agency’s decision finding no discrimination 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
February 15, 2012
__________________
Date
1 We have reordered and renumbered the allegations.
2 Complainant’s complaint also included three additional issues dated in
August 2007. On March 3, 2008, the Agency issued a decision dismissing
the three additional issues. There is no indication in the record that
Complainant challenged the dismissal of the three additional issues
with the AJ or raised the matter in the instant appeal. Therefore,
we will not address these issues in this decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120090640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090640