0120113957
12-07-2012
Pamela Hyman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Pamela Hyman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120113957
Hearing No. 520201000497X
Agency No. 4B100002010
DECISION
On August 20, 2011, Complainant filed an appeal from the Agency's July 26, 2011, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor at the Agency's Midtown Station in New York, New York.
On February 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Brown), and reprisal when:
1. On October 26, 2009, Complainant's Manager planted a registered mail package in her vault;
2. On November 12, 2009, Complainant's Manager reported to the Area Manager that Complainant had instructed her employees not to follow the Manager's instructions;
3. On November 12, 2009, the Area Manager threatened to take Complainant's job away;
4. On November 14, 2009, Complainant's Manager charged Complainant Absent Without Leave (AWOL);
5. On November 23, 2009, Complainant's Manager threatened Complainant with physical harm;
6. On November 27, 2009, Complainant was detailed to another station;
7. On November 20, 2009, Complainant was issued a Letter of Warning (LOW), in lieu of a 14-day suspension; and
8. On April 21, 2010, Complainant was notified that she was not selected at either of two stations to which she applied on March 8, 2010.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency indicates that the record evidence shows, with respect to claims 1, 2 and 3, that Complainant did not suffer any adverse action as a result of the Agency's alleged conduct. However, in response to Complainant's claims, the Agency indicates that, concerning claim 1, a registered mail package had been reported missing since August 14, 2009. The Agency further indicates that the package was eventually found on October 27, 2009 by a clerk and reported to Complainant. There is no record evidence demonstrating that Complainant suffered any harm as a result of the missing package. Concerning claims 2 and 3, the Agency indicates that two window clerks contacted the Area Manager and informed him of Complainant's instructions to them not to follow the directions of Complainant's manager. According to the Agency, the Area Manager conducted an investigation into the allegation on November 12, 2009 and determined that according to the window clerks, Complainant advised them not to follow the Manager's instructions so that customers would complaint about the poor service given at the window for which the Manager would be held responsible. The Agency further indicates that although Complainant denied the allegations, the Area Manager spoke with Complainant over the telephone and reminded her that Agency employees are expected to conduct themselves in a matter that reflects favorably upon the Postal Service during work hours. The record discloses that ultimately, Complainant's job was not threatened nor was any adverse taken against Complainant.
With regard to claim 4, the Agency indicates that Complainant was scheduled to work on Sunday, November 14, 2009 beginning at 4AM. The Agency further indicates that Complainant was advised that if she could not come in to work at 4am, she could come in at a later time. However, the record indicates that Complainant failed to show up for her shift and failed to call in to say that she would not be at work. Consequently, Complainant was found to be absent without leave for Sunday, November 14, 2009. The record is devoid of any evidence in support of Complainant's contention in claim 5 that her Manager threatened Complainant with physical harm on November 23, 3009. According to the Agency, Complainant's Manager contacted Complainant by telephone after she observed that the station lobby was full of customers. Complainant's Manager informed Complainant that she needed to go out and reduce the wait in line time to which Complainant allegedly replied, "I am not going to do anything, and what are you going to do." The Agency indicates that Complainant's Manager went to the lobby herself to help reduce the wit in line time. Complainant's Manager further indicates that after Complainant saw her Manager working in the lobby performing the job Complainant was initially instructed to do, Complainant complained that her Manager threatened her which physical harm as outlined in claim 5.
In claim 6, Complainant alleges that she was discriminatorily moved to another duty station on November 27, 2009. According to the Agency, Complainant's move to another duty station was initiated by Complainant herself who insisted that she was being subjected to a hostile work environment at her current work location. Specifically, the Agency indicates that following Complainant's allegation that she had been threatened with physical violence by her Manager, the Agency instructed Complainant to report to the Agency's Main Post Office. The record further indicates that although Complainant's allegation regarding threatened violence was never substantiated, Complainant maintained that she would not work where her Manager was assigned. Concerning claim 7, the Agency indicates that Complainant was issued a LOW in lieu of a 14-day suspension as a result in part, of her conduct on November 23, 2009, when she refused to follow the instructions of her Manager to reduce the wait in line time for customers in the lobby. The Agency also indicates that Complainant was issued discipline because of her unacceptable conduct and disrespectful behavior toward her Manager on other occasions in October and November 2009.
The Agency further indicates that Complainant was not the best suited candidate to work at either of two stations for which she applied. Specifically, the Agency indicates that the two selected individuals were more flexible and willing to work split days and they each knew that they would work at different locations. According to the Agency, the two selectees for the positions best suited the operational needs of the Agency.
The Agency's final decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). 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). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
To the extent that Complainant alleges that the Agency's alleged conduct constituted discriminatory harassment, the Commission notes that 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. U.S. Postal Serv., 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 Sys., 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 Sys., 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 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 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.
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. The Commission concludes that Complainant did not prove that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that she also failed to prove that the Agency's actions were unlawfully motivated by her protected classes. Accordingly, Complainant has not shown that she was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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
December 7, 2012
__________________
Date
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0120113957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113957