01A12594
09-18-2002
Deirdre L. Pillard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Deirdre L. Pillard v. United States Postal Service
01A12594
September 18, 2002
.
Deirdre L. Pillard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A12594
Agency Nos. 4G770078398;
4G770027699;
4G770030399
Hearing Nos. 330-99-8225X;
330-AO-8068X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier, PS-5, at the agency's Fairbanks Station
in Houston, Texas. Complainant sought EEO counseling and subsequently
filed three formal complaints on September 14, 1998, April 26, 1999,
and May 20, 1999, respectively. In her first complaint (4G770078398),
complainant alleged that she was discriminated against on the bases of
her sex and race (African-American), when on August 8, 1998, she was
harassed as follows:
(1) Management lied to her;
She was given instructions which were changed later;
She was not allowed to double case;
She was not allowed to assist her co-workers on other routes during
her spare time;
She could not revise her schedule;
She was required to get on a certain operation to load parcels on
her vehicle;
She was only allowed four hours of go back time;
She was confronted by management about carrying her route, while
other carriers worked overtime hours carrying their routes and nothing
was said;
She was told not to touch the Delivery Point Sequence (DPS) mail;
Management used a union steward to harass her about her mother; and,
The Supervisor (S1) cursed on the workroom floor without consequences.
In her second complaint (4G770027699), complainant alleged that she was
discriminated against on the bases of her race, color (black), sex and
prior EEO activity when:
On February 13, 1999, a supervisor placed his hands on her, which caused
her to snatch her left wrist out of his hand and push him away.
In her third complaint (4G770030399), complainant alleged she was
discriminated against on the bases of race, color, national origin
(African-American), age (D.O.B. April 21, 1957), and prior EEO activity
when:
On March 11, 1999, she was issued a notice of removal.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ consolidated the complainants for a hearing.
Following the hearing, the AJ made a finding of no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination on the alleged bases and retaliation. The AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. For instance, management asserted that it moved
complainant around because the focus of the needs of the agency changed.
As to the events leading up to complainant's removal, the agency
stated it had reason to believe that complainant pushed a supervisor
and had performed actions off duty which were outside of her physical
limitations. The AJ found that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found that complainant failed to show that she was selected for
surveillance due to her membership in protected classes, or that her
investigation would have been conducted in any other manner if she had
not been a member of protected groups. The AJ further found that the
evidence shows that complainant's conflict with the union steward is
of a personal nature, and that the union also brought to the attention
of the agency other employees who were working outside their contract.
The AJ also found that complainant's supervisor cursed on the workroom
floor, but that the evidence does not show that this was directed
toward complainant. The agency's final order, dated January 2, 2001,
implemented the AJ's decision.<1> Neither complainant, nor the agency,
makes any new contentions on appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). Under the ADEA, it is "unlawful for an
employer ... to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decision-making process and had a determinative
influence on the outcome." Id.<2>
As to claims one to eleven, we note that in order to establish a claim
of harassment on the alleged bases, the complainant must show that: (1)
she belongs to the statutorily protected classes; (2) she was subjected
to unwelcome conduct related to her membership in those classes; (3)
the harassment complained of was based on her membership in protected
classes; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Fox v. General Motors, 247
F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994). We are not persuaded that
the conduct at issue was based on complainant's membership in protected
classes.
As to claims twelve and thirteen, we note that to prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
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, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case
of discrimination on all of the alleged bases, we turn to the agency
to articulate legitimate, nondiscriminatory reasons for its actions.
The agency asserts that the incident described in claim twelve, did
not occur as complainant alleges, and that in fact, complainant rushed
at her supervisor (S1) in a threatening manner, putting her finger in
his face, and yelled at him. Additionally, management asserts that
complainant called S1 a �bald-headed bastard,� and then she struck S1 in
his chest with both her hands. As to the removal, the agency asserted
that the reason for the action was 1) complainant's improper conduct and
violation of the Zero Tolerance policy, and 2) complainant's violation
of Strict Rules of Conduct and Employee Responsibility while Claiming
Injury-on-Duty. Although complainant puts forth several challenges to
the agency's explanations, the AJ's finding that complainant failed to
establish that the agency's reasons are pretextual, is supported by
substantial evidence in the record. In so finding, we note that the
evidence of record does not indicate that age played any role in the
agency's actions.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's membership in protected groups.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
September 18, 2002
__________________
Date
1 The record contains another FAD (undated), which addresses the
allegations raised in 4G770027699. However, we will consider the FAD,
dated January 2, 2001, (which addresses the same issues), to be the
agency's final decision.
2 We note that the AJ's decision did not address the basis of age, which
complainant alleged in 4G770030399. We nevertheless find ample evidence
in the record from which a determination regarding discrimination may
be made. Therefore, we address the basis of age in the instant decision.