01A12650_01A12651
08-07-2002
Leslie A. House, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leslie A. House v. United States Postal Service
01A12650; 01A12651
August 7, 2002
.
Leslie A. House,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A12650; 01A12651
Agency Nos. 4-G-720-0142-98 ; 4-G-720-0062-98
DECISION
Complainant timely initiated appeals from two final agency decisions
(FAD) concerning her complaints of unlawful 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeals are consolidated and accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decisions.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Part Time Flexible (PTF), Distribution/Window Clerk, PS-05 at the
West Memphis, Arkansas Post Office, Little Rock, Arkansas facility.
Believing the agency was discriminating against her, complainant sought
EEO counseling and subsequently filed two formal complaints at issue
herein. At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing on September 20, 1999, however, prior to the
scheduled hearing date, complainant withdraw her request, and requested
in each of her two complaints that the agency issue a final decision.
The agency issued two final decisions finding no discrimination from
which complainant now appeals.
Complainant filed two formal EEO complaints on November 18, 1998
(complaints 1 and 2 respectively). In complaint 1 (EEOC Appeal
No. 01A12651)<1>, complainant alleged that she was discriminated against
on the bases of sex (female), and disability (carpal tunnel syndrome
and height) when:
(1) on January 15, 1998, she was issued a notice of removal;
on January 18, 1998, she was subjected to verbal abuse;
on January 20, 1998, her scheme testing was changed, making it more
difficult than the test given others; and
beginning January 23, 1998, she was given more inconsistent schedules
than others.
In complaint 2 (EEO Appeal No. 01A12650)<2>, complainant alleged that
she was discriminated against on the bases of race (Caucasian), sex
(female), disability (carpal tunnel syndrome and height), and reprisal
for prior EEO activity when:
on May 4, 1998, she was subjected to verbal abuse and harassment;
additionally, she was denied work hours and her scheduled was changed.
Appeal No. 01A12651
In its FAD, the agency concluded that complainant failed to established
a prima facie case of discrimination based either on sex or disability.
Specifically, the agency noted that complainant was not able to identify
individuals outside her protected group who were accorded more favorable
treatment under similar circumstances. The agency also concluded that
the comparative employees cited by complainant were not similarly situated
to complainant. The agency further concluded that complainant failed to
prove by a preponderance of the evidence that management's articulated
reason for its actions was a pretextual mask for discrimination. The
agency noted that complainant alleged that she was subjected to verbal
abuse by the Postmaster, however, the evidence shows a different story.
Specifically, the agency noted that the Postmaster did not raise his voice
to complainant, and that it was complainant who became belligerent and
began talking back to the Postmaster in a very loud tone of voice. The
agency also found that complainant's inconsistent scheduled was an
attempt to provide work to complainant within her severe restrictions.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
Appeal No. 01A12650
In its FAD, the agency concluded that complainant failed to established a
prima facie case of discrimination based on race, sex, or disability, and
did not show by a preponderance of the evidence that she was the victim
of intentional retaliatory animus for having engaged in protected EEO
activity. The agency also concluded that management produced admissible
evidence that its actions were taken for non-discriminatory reasons.
Specifically, the agency found that complainant was sent home at 0600
on the date in question and instructed to return at a later time due to
the fact that there was insufficient work available within complainant's
restrictions at that time of the morning, and that later there would be
additional duties that complainant could perform after additional mail
had been set up.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). A complainant 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
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; 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
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo that complainant established a prima facie case of race,
sex, disability or reprisal discrimination, the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for
its actions. Regarding claim (1), the record reveals that management
issued a notice of removal to complainant for failing to successfully
complete her scheme training. The record reveals that when complainant
was hired it was as a scheme clerk and her position required her to
take/pass a scheme. The record also reveals that complainant was to be
allowed one attempt per work day to qualify on her scheme assignment
before the effective discharge date, and that should complainant qualify,
the discharge was to be rescinded. The record reveals that complainant
passed scheme training on February 12, 1998.
Regarding claim (2), the record reveals through management's testimony
that complainant became belligerent and was talking back very loudly.
The Postmaster stated that at no time did he raise his voice or verbally
abuse complainant. Regarding claim (3), the record reveals that the
scheme training was conducted by certified OJT trainer in accordance with
mandated guidelines, and management had no say as to how the training
was conducted. Regarding claim (4), the record reveals that complainant
is a part-time flexible employee who does not have a set schedule.
The record reveals that complainant was provided work within her
restrictions and was accommodated with work when there was work available.
Regarding claim (5), the record reveals that complainant was a part time
flexible (PTF) clerk who wanted to work overtime, and that there was
insufficient work within her limitations to provide complainant overtime.
The record reveals that complainant worked approximately the same amount
of hours as the other PTF clerks at the agency.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant did not rebut any of the agency's reasons for
its actions. For example, complainant did not show that her position did
not require her to take/pass a scheme. The record reveals that the agency
required all PTF employees to pass a scheme training. Complainant argued
that her scheme training was changed to harder testing compared to others,
however, the record did not reveal that complainant received a different
test than other employees. Complainant also argued that she was given
inconsistent schedules. The record reveals that complainant was hired
as a part time employee, and therefore did not have a set work schedule.
Harassment
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. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citation omitted). To establish a prima facie case of hostile environment
harassment, 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 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. 29 C.F.R.� 160.
Regarding complainant's claim of harassment, we find that complainant
failed to established a prima facie case of hostile environment
harassment. We find that even if complainant's allegations are true,
they are not sufficiently severe or pervasive to alter complainant's
condition of employment.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
August 7, 2002
__________________
Date
1Agency No. 4-G-720-0062-98
2Agency No. 4-G-720-0142-98