0120081380
06-04-2008
Simar K. Dhami, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Simar K. Dhami,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081380
Hearing No. 550-2007-00360X
Agency No. 4F9560031007
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
timely appeal from the agency's December 31, 2007 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.
At the time of events giving rise to this complaint, complainant worked
as an associate supervisor of customer service at the agency's Hudson
and Paradise Stations in Modesto, CA.
On March 11, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Asian) and national origin
(India) when:
1. Her supervisors opened an investigation based upon an allegation that
she was intentionally delaying first-class mail;
2. She was assigned PM hours while temporary supervisors were assigned
AM hours; and
3. She was subject to a hostile work environment
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC AJ. Complainant timely requested a hearing.
The AJ granted the agency's November 23, 2007 motion for a decision
without a hearing. The agency subsequently issued a final order accepting
the AJ's finding that complainant was not subjected to discrimination
as alleged, which complainant appeals.
The AJ found that complainant had not suffered any adverse action
as a result of the investigation. Even if complainant had suffered
adverse action, the AJ found that the agency provided legitimate,
non-discriminatory reasons for opening the investigation. Further,
the AJ found that the agency provided legitimate, non-discriminatory
reasons for assigning complainant PM hours. The AJ also considered the
totality of the circumstances in determining that complainant was not
subject to a working environment "permeated" by hostile conditions on
the basis of two discrete events.
On appeal, complainant argues that the investigation was discriminatory
because the AM supervisor was not investigated and because the supervisor
responsible for opening the investigation was not herself investigated.
The agency provides several arguments in its appeal. Complainant was
not discriminated against because she suffered no adverse effects as
a result of the investigation. Complainant was assigned the PM hours
because those were the hours available. Finally, the agency argues
that complainant has failed to rebut the agency's offer of legitimate,
non-discriminatory reasons.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (Nov. 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A.
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).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination.
Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, complainant must prove, by a preponderance
of the evidence, that the agency's explanation is pretextual. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 2097 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Sys., 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of 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. Humphrey v. U.S. Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
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 (Mar. 8,
1994). Further, the incidents must have been "sufficiently severe and
pervasive to alter the conditions of complainant's employment and create
an abusive working environment." Harris, 510 U.S. at 21; see also Oncale
v. Sundowner Offshore Servs., Inc., 23 U.S. 75 (1998).
Summary judgment is appropriate here because there are no genuine issues
of material fact.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we determine that
complainant has not established a prima facie claim with respect to the
investigation; the agency has demonstrated legitimate, non-discriminatory
reasons for complainant's prima facie claim with respect to the assignment
of hours; and complainant has failed to demonstrate a hostile work
environment.
In order to establish a prima facie claim, complainant must have
shown some adverse action as a result of the investigation opened
into the delay of first-class mail. Complainant's argument that other
supervisors were not investigated is irrelevant because the complaint
by one of complainant's employees, which prompted the investigation,
was directed at complainant and not toward other supervisors.
The investigation itself did not result in a reprimand or some other
sanction against complainant.1 This investigation, on its own,
did not constitute adverse action. It is management's responsibility
to ensure the "accomplishment of work" (Id. Ex. 14), and to this end,
investigate job performance and ensure employees are performing their
duties. (Id. Ex. 16.) Complainant's supervisors were obligated to
investigate a complaint by one of complainant's employees.2
With respect to the assignment of PM hours to complainant at the
Paradise station, the agency has demonstrated that complainant was
initially assigned to that station on a temporary basis. At Paradise,
the AM hours were already assigned to a higher-ranking supervisor, and
thus could not be given to complainant. One of complainant's supervisors
testified that, while trainees were initially assigned AM hours in order
to gain experience with AM duties, complainant was permitted to work
the AM hours when the regular supervisor had an off day. (IR Aff. E.)
The supervisor further testified that complainant willingly accepted
a permanent assignment to the PM hours at Paradise. (Id.) The agency
has shown a legitimate, non-discriminatory reason for the assignment.
Thus, the burden is shifted to complainant. Complainant has failed to
demonstrate any pretext behind her voluntary acceptance of a permanent
position, or her assignment to Paradise in the first place.
To sustain a finding of a hostile working environment, complainant
must show that abuse by her employers is sufficiently frequent so as to
permeate the workplace. Complainant has not provided evidence of events
beyond the two articulated above that would support such a finding.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
June 4, 2008
Date
1 We note that the record reveals a similar investigation resulting
in adverse action against another employee. (Investigative Report ("IR")
Aff. B.)
2 Even if this constituted adverse action, the agency's response
to an employee complaint is a legitimate, non-discriminatory reason,
which complainant has failed to rebut.
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0120081380
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081380