01A14148
10-08-2002
Bonnie L. Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Bonnie L. Ellis v. United States Postal Service
01A14148
October 8, 2002
.
Bonnie L. Ellis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A14148
Agency Nos. 1J609003899,
1J609004199
Hearing Nos. 210-AO-6142X
210-A0-6195X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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 order.
The record reveals that complainant, a Full Time Mail Handler, PS-04,
at the agency's Chicago Bulk Mail Center at Forest Park, Illinois
(�facility�), filed a formal EEO complaint on July 14, 1999, alleging
that the agency had discriminated against her on the bases of her sex,
disability (arthritis of knees), and age (D.O.B. February 5, 1955)
when she was subjected to harassment as follows:<1>
(1) On March 14, 1999, her supervisor (S1),<2> knowing that her union
steward (U1) was not available, nevertheless instructed her to attend
a pre-disciplinary inquiry;
On March 15, 1999, she was issued a Letter of Warning (LOW);
On or about March 26, 1999, S1 instructed her to return to her unit
to obtain a pass to the union room and also to return to her unit to
clock for union business;
On March 31, 1999, S1, knowing that U1 was not available, again
instructed her to attend a pre-disciplinary inquiry; and
On April 1, 1999, she was issued a seven-day no time off suspension.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ found, as to claim (1), that complainant failed to establish
that she has a disability pursuant to the Rehabilitation Act. Assuming
arguendo that complainant established a prima facie case, the AJ found
that the agency articulated a legitimate, nondiscriminatory reason
for its action, namely, that although U1 was unavailable, another
union steward was available on that occasion. The AJ found that
complainant failed to establish by the preponderance of the evidence,
that the agency's action was pretext for discrimination. As to claim
(2), the AJ assumed that complainant established a prima facie case
of discrimination and proceeded to find that the agency articulated
a legitimate, nondiscriminatory reason for its action. Specifically,
complainant was dumping the wrong mail on the conveyor belt, and failed
to follow S1's instructions. When S1 attempted to have a discussion
with complainant, she became uncooperative, out of control and loud.
The AJ found that complainant failed to establish that the agency's
reason was pretextual.
As to claim (3), the AJ found that it is standard procedure for employees
to obtain a pass and to clock their time for union business. The AJ
further found that this action was not adequately severe or pervasive
as to constitute harassment. As to claim (4), the AJ found that the
agency articulated a legitimate, nondiscriminatory reason for its action,
namely, that other union stewards were available on that occasion. The AJ
found that complainant failed to meet her burden of establishing that the
agency's reason was pretextual. As to claim (5), the AJ found that the
agency articulated a legitimate, nondiscriminatory reason for its action,
namely, that the suspension was issued because complainant walked away
while S1 was giving her instructions. According to S1 complainant was
throwing newspapers onto the belt in a haphazard way, and despite having
been instructed to place mail on the belt, complainant began writing
notes. Complainant's conduct delayed other employees' mail processing.
The AJ found that complainant failed to establish that the agency's reason
was pretextual. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the
hearing, and contends that the AJ erred when he made a finding of
no discrimination. The agency stands on the record and requests that
we affirm its final order. 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.
Harassment of an employee that would not occur but for the employee's
protected activity under the anti-discrimination statutes is unlawful,
if it is sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). In order to prove a case of harassment,
the complainant must establish, by a preponderance of the evidence,
the existence of five elements: (1) she is a member of a statutorily
protected group; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected group;
(3) the harassment complained of was based on the statutorily protected
group; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with her
work environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) that there is a basis for imputing liability
to the employer. McLeod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999). After a review of the record, we find
that complainant has not established that the acts of harassment she has
alleged were based on her membership in protected groups. We further
conclude that the AJ's finding of no discrimination is supported by
substantial evidence in the record.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and 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 motivated by discriminatory animus toward
complainant's sex, age, or disability. 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
October 8, 2002
__________________
Date
1 The record indicates that the basis of race was withdrawn by
complainant. See Hearing Transcript (HT) at p. 5.
2 At all relevant times, S1 was the Supervisor for Distribution
Operations.