Cheryl Horner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01200631831 Hearing No. 250-2005-00118X Agency No. 1H-378-0010-04 DECISION On May 1, 2006, complainant filed an appeal from the agency's March 28, 2006 final order 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. For the following reasons, the Commission AFFIRMS the agency's final order. At the time of events giving rise to this complaint, complainant worked as a Flat Sorter Machine (FSM) Operator at the Knoxville, Tennessee, Processing and Distribution Center. On July 23, 2004, complainant filed a formal EEO complaint wherein she claimed that she was subjected to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when she was treated less favorably than her male coworkers in her unit with regard to lunch breaks, break opportunities, early out lists, visitors, schedule changes, workload, machine assignments, plant contests and overtime opportunities, beginning September 2003, and when she was given an investigative interview on May 21, 2004. On September 16, 2004, the agency issued a partial dismissal wherein it dismissed complainant's claim concerning receiving an investigative interview pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The agency determined that complainant did not suffer any measurable personal harm as a result of the discussion. The agency accepted the remaining claims of the complaint for investigation. Complainant was assigned to work primarily on the FSM 1000 in section 106 shortly after the Supervisor of Distribution Operations became her supervisor. The section included both the FSM 1000 and the Linear Integrated Parcel System (LIPS) machines. The LIPS machine handled parcels and priority mail on Tour one and usually three employees were assigned to this operation. The FSM 1000 sorted magazines and flat mail and had five employees. The three employees with the greatest seniority chose to work on the LIPS machine. Each of these employees was male. With regard to the FSM 1000 machine, the workers on this machine generally consisted of four females and one male. The section 106 employees on Tour one had rotated assignments to both machines prior to the Supervisor assuming control. Complainant preferred to continue rotating to both machines but the Supervisor instituted a policy where each employee would primarily work on one machine. The record reveals that complainant complained to the Supervisor about the lack of rotation on the two machines and about the breaks taken by the men who worked on the LIPS machine. Complainant further complained that workers on the LIPS machine were sometimes allowed to skip lunch and leave work early if they had completed their work. According to complainant, male coworkers on the LIPS machine exhibited hostility toward her because they blamed her for the loss of these privileges. Complainant claimed that the Supervisor did not do anything about her complaints and instead told the males about her complaints. Complainant stated that the Supervisor was condescending and dismissive toward her when she complained that the males were treated better. Complainant further stated that the Supervisor scrutinized the FSM 1000 employees while they were working much more than the LIPS employees. Complainant claimed that sexual harassment occurred as evidenced by "farting games" on the intercom engaged in by the Supervisor and a male coworker, and inappropriate comments between the same individuals concerning oral sex and whether one would "hit that" in terms of a female coworker. Complainant claimed that she was not scheduled for overtime as often as she should have been and not on the day she preferred. Complainant added her name to the overtime desired list on April 12, 2004, for the April/May/June quarter. On June 15, 2004, complainant informed the Supervisor that she no longer wanted to be on the overtime desired list. Complainant claimed that a male employee had been granted his request to work Friday night overtime each week the previous quarter and that her request to do the same was denied. Complainant acknowledged that the male employee had religious reasons for only working on Friday. On May 21, 2004, complainant received an investigative interview. Complainant recognized that her Supervisor had noticed her reading a magazine while on duty and that she had quit keying, although she said that she quit keying after doing the required 45 minutes and wanted to take her allowed 15 minute break. Complainant maintained that she was not required to key longer than 45 minutes under the contract, and although she had keyed longer than that many times in the past, she was unwilling to do so that day because she did not want to aggravate her tendonitis. Each female employee who frequently worked on the LIPS machine testified that the Supervisor was not watching the LIPS employees, so they could come and go as they pleased. Complainant claimed that she was also discriminated against with respect to having visitors while she was working. According to complainant, employees on the LIPS machine had frequent visitors yet her friend was informed by her supervisor that complainant's supervisor did not want anyone talking to his employees. On another occasion, complainant requested a schedule change, but was told that the request was denied because she submitted it almost four weeks in advance, which was too far in advance for her Supervisor to know if the request would cause problems because of the workload and/or leave requests from other employees. As for complainant's claim regarding plant contests, complainant claimed that some White males were able to win due to the Supervisor helping them cheat. 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 Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing and issued a decision on February 15, 2006. The AJ found that complainant was not discriminated against on the bases of either her sex or reprisal. With regard to work assignments, the AJ noted that the agency stated that work assignments were based on preferences which were granted by seniority. The AJ found that complainant failed to provide sufficient evidence to show that this reason was a pretext for illegal discrimination. The AJ found that the level of scrutiny was based on which machine an employee worked on and not who the employee was or whether or not they were members of any particular protected group. According to the AJ, the Supervisor scrutinized everyone who worked on the FSM 1000. The AJ noted that White males also worked on the FSM 1000 and that they were subject to the same work environment. The AJ observed that the agency's position was that the differences between those who worked on the LIPS and those who worked on the FSM 1000 were the differences in the machines, including schedules and functions, and not the people working on either machine. The FSM 1000 was also given special emphasis because it was scheduled to be certified in March or April 2004, and certification requirements needed to be met. With regard to complainant's friend being told by her supervisor to leave complainant's work area, the AJ found that complainant failed to show that complainant's Supervisor was involved. The AJ also found that complainant provided no evidence to support her claim that she was discriminated against with regard to plant contests. As for the investigative interview, the AJ reasoned that complainant's testimony does not support her claim that discrimination occurred or that the investigative interview was part of a pattern of harassment. The AJ noted that complainant did not claim that any male engaged in the same or similar behavior and was not subjected to an investigative interview. Moreover the AJ observed that complainant does not claim that she received any discipline as a result of the interview. With regard to complainant's claim of sexual harassment, the AJ found that complainant failed to provide sufficient evidence that she was subjected to sexual harassment. According to the AJ, complainant's Supervisor engaged in "bathroom humor" which was inappropriate and unprofessional, but this did not reflect sexual harassment. The AJ noted that complainant did not claim that any remarks were directed at her and she only described one statement she overheard between her Supervisor and another male from a different section. The AJ reasoned that complainant did not provide evidence that shows any words or actions of a sexual nature were directed at her. Additionally, the AJ stated that her Supervisor's inappropriate behavior stopped after she reported his conduct to his Supervisor. The AJ further found that complainant failed to show that her coworkers illegally harassed her because she was female or because of her protected activity. The AJ observed that these same males would have been upset with anyone who reported them to their Supervisor (regarding their work schedules). The AJ noted that complainant had no problems with other White males but since she complained about the employees who worked on the LIPS, these employees were upset with her. According to the AJ, complainant may have worked in a hostile work environment, but it was not due to illegal discrimination. With regard to the denial of complainant's request for a schedule change, the AJ found that this was a discrete act which was untimely filed. The AJ stated that complainant did not contact an EEO Counselor regarding the denial of her request for a schedule change within 45 days and she failed to show that this was part of a hostile work environment. As for the denial of complainant's request for overtime, the AJ noted that complainant admitted that she declined overtime on at least one occasion and that although she claimed she was denied overtime on June 19, 2004, the record indicates that she informed her Supervisor on June 15, 2004, prior to the scheduled being posted for June 19, 2004, that she no longer wanted overtime. According to the AJ, the agency articulated a legitimate reason for not providing overtime to complainant on May 22, 2004, and complainant failed to provide sufficient evidence to show that she was denied overtime on that date due to her sex or reprisal. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to discrimination as alleged. Thereafter, complainant filed the instant 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). 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 she 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). Complainant alleges that she was subjected to a hostile work environment. To establish a prima facie case of a hostile work environment, a complainant must show that: (1) s/he is a member of a statutorily protected class; (2) s/he 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. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. §1604.11. In order to establish a prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that 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) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (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 on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, it is evident that the alleged harassment by complainant's coworkers was conduct based not on her sex or prior EEO activity but rather their reaction to her complaining about the privileges they enjoyed and excesses they allegedly engaged in. As for the harassment allegedly committed by the Supervisor, it is apparent that the Supervisor's actions were not due to complainant's sex or prior EEO activity, but rather that he paid much more attention to those individuals who worked on the FSM 1000 as opposed to the LIPS because he was situated closer to their work location and the FSM 1000 was facing certification. Complainant also has not shown that the Supervisor's allocation of rotation assignments, break opportunities, lunch breaks and workload were based on her sex or prior EEO activity. The record supports the agency's position that these decisions were a reflection of the functions of the machines, the tour hours for each machine, and also nondiscriminatory policies put into effect by the Supervisor. With respect to the claim of sexual harassment, the conduct cited by complainant was not specifically directed at complainant and at times lacked sexual content. We find that complainant has not presented evidence to establish that discriminatory motivation was a factor in plant contests or in her friend's supervisor directing her friend to curtail her visit with complainant. As for the denial of complainant's request for a change in schedule (even if considered timely raised), complainant has not refuted the agency's position that her submission of the request almost four weeks in advance was too far in advance for the Supervisor to know if the request would cause problems because of the workload and/or leave requests from other employees. With regard to the denial of complainant's requests for overtime, complainant has not refuted the agency's position that on various occasions she either declined overtime, was no longer on the overtime desired list, or that she received overtime opportunities during the two month period when she was on the overtime desired list. Finally, as to the claim concerning the investigative interview, even if such a claim is properly considered as part of the harassment claim, we find that the record reveals that complainant did not refute the agency's reasons for the interview. Complainant did not deny that she was reading a magazine instead of working and she did not deny that she told her Supervisor that she was not going to key anymore after 45 minutes. Complainant did not establish that the investigative interview was part of a pattern of harassment against her. Upon review of the record, the Commission finds that the AJ's decision finding no discrimination is supported by substantial evidence. The agency's decision finding no discrimination is AFFIRMED. 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 November 30, 2007 __________________ Date 1 Due to a new data system, this case has been redesignated with the above referenced appeal number. ?? ?? ?? ?? 2 01200631 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 7